{ "id": 4180965, "name": "AMY JAVORSKY, Employee, Plaintiff v. NEW HANOVER REGIONAL MEDICAL CENTER, Employer, SELF-INSURED (ALLIED CLAIMS ADMINISTRATION, INC., Servicing Agent), Defendant", "name_abbreviation": "Javorsky v. New Hanover Regional Medical Center", "decision_date": "2010-12-21", "docket_number": "No. COA10-454", "first_page": "644", "last_page": "654", "citations": [ { "type": "official", "cite": "208 N.C. App. 644" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "622 S.E.2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634563 ], "year": 2005, "pin_cites": [ { "page": "712", "parenthetical": "quoting Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000)" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0710-01" ] }, { "cite": "345 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778695 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0206-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "298 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "307 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562490 ], "year": 1983, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0392-01" ] }, { "cite": "464 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "485" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915261 ], "year": 1995, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0048-01" ] }, { "cite": "394 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "192", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525056 ], "year": 1990, "pin_cites": [ { "page": "768", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0767-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "605 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "713", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8412866 ], "year": 2004, "pin_cites": [ { "page": "624", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0618-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "parenthetical": "\"an injured employee may select a physician of his own choosing to attend, prescribe and assume the care and charge of his case, subject to the approval of the Industrial Commission.\"" } ], "opinion_index": 0 }, { "cite": "472 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "387" }, { "page": "387" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912507 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "207" }, { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0200-01" ] }, { "cite": "264 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575647 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0582-01" ] }, { "cite": "509 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "235", "parenthetical": "citing Schofield v. Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980)" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 826", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11206227 ], "year": 1998, "pin_cites": [ { "page": "831", "parenthetical": "citing Schofield v. Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0826-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "753" } ], "opinion_index": 0 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "year": 2003, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "23 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "296", "parenthetical": "discussing the standard for compensability when a work-related accident results in death" } ], "opinion_index": 0 }, { "cite": "222 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630398 ], "year": 1942, "pin_cites": [ { "page": "365", "parenthetical": "discussing the standard for compensability when a work-related accident results in death" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0358-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "pin_cites": [ { "page": "167" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "year": 2000, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "175 N.C. App. 219", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351270 ], "year": 2005, "pin_cites": [ { "page": "220", "parenthetical": "quoting Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0219-01" ] }, { "cite": "661 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "714", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149478 ], "year": 2008, "pin_cites": [ { "page": "305", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0299-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "669 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "584", "parenthetical": "quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149368 ], "year": 2008, "pin_cites": [ { "page": "660", "parenthetical": "quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0657-01" ] } ], "analysis": { "cardinality": 978, "char_count": 22274, "ocr_confidence": 0.729, "pagerank": { "raw": 4.6922169990516086e-08, "percentile": 0.29455095644572327 }, "sha256": "618fe398b0013993c9174fc75b71c110f4d67b47f727ad7669abb84226673802", "simhash": "1:0922ee4655373913", "word_count": 3529 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and HUNTER, Robert N., Jr., concur." ], "parties": [ "AMY JAVORSKY, Employee, Plaintiff v. NEW HANOVER REGIONAL MEDICAL CENTER, Employer, SELF-INSURED (ALLIED CLAIMS ADMINISTRATION, INC., Servicing Agent), Defendant" ], "opinions": [ { "text": "BRYANT, Judge.\nBecause there is competent evidence of a proximate causal relation between the tasks performed during the course of employment and the injury sustained, the Industrial Commission\u2019s finding of fact as to the existence of such a relation is upheld despite evidence to the contrary. For the reasons stated herein, we affirm the Opinion and Award of the North Carolina Industrial Commission.\nThe evidence presented to the North Carolina Industrial Commission (the Commission) tends to indicate the following. Plaintiff Amy Javorsky (Javorsky) was employed as a registered nurse by defendant New Hanover Regional Medical Center (New Hanover Regional) in the step-down intensive care unit. The step-down unit receives patients on their way to and from intensive care and from the emergency department. Javorsky testified that most of the patients in the step-down unit are \u201ctotal-care\u201d patients: among other duties, nurses are required to reposition the patients every two to three hours; get patients out of bed; and ambulate them. In repositioning a patient, nurses often move the patient with the use of a \u201cdraw sheet\u201d that allows the nurses to slide or roll the patient in the patient bed. Moving a patient between a bed and a chair, nurses have the option of performing a \u201ctotal body lift,\u201d by sliding a blanket under the patient and lifting the blanket.\nOn 18 June 2007, Javorsky was working with a patient from a nursing home. The patient was \u201csmall, frail, about 120 pounds . . . .\u201d Because of the patient\u2019s small size, Javorsky and one other nurse\u2019s assistant performed a total body lift to move her from her bed to a chair. Javorsky testified before a deputy commissioner that as soon as she put the patient in the chair, \u201c[she] felt something immediately .... [l]ike possibly pulled muscles\u201d along her neck and right shoulder. Javorsky continued to work but, later in the day, felt a burning sensation in her neck. After her shift, Javorsky went home. When she reached for something on a top shelf in her kitchen, she felt pain like \u201ca sharp knife in [her] neck.\u201d Javorsky had previously pulled a muscle in the same area, and after taking muscle relaxers and Ibuprofen, the pain had gone away. For her current pain, she followed the same course of treatment. On 21 June, Javorsky returned to work as scheduled. However, the pain in her neck was still present and had gotten progressively worse. On the morning of 25 June 2007, Javorsky reported the injury to Employee Health and filed a Report of Employee Occupational Injury or Illness. She was placed on restrictive duty and referred to Dr. Alan A. Tamadon, a physiatrist. In the interim, Javorsky began to experience numbness in her right thumb. Dr. Tamadon ordered that she undergo an MRI and referred her to Coastal Neurosurgical. Javorsky was seen on 18 September 2007.\nPhysician\u2019s assistant Christopher Steyskal (Steyskal) performed a complete examination of Javorsky and found the results consistent with her complaint of neck and right shoulder pain occurring while transferring a patient from a bed to a chair. Steyskal reported Javorsky as suffering from \u201ca small disc herniation ... at C4-5 with some left-sided severe compromise.\u201d \u201cAt C5-6 there was a large paracentral to the right disc herniation filling the foramen on the right. There was also some foraminal narrowing on the left at [the level of C5-6].\u201d Steyskal testified that a disc herniation at C5-6 was compressing the C6 nerve root, which resulted in symptoms that radiated down her arm into her hand. Javorsky was given the option of fusing the vertebra in her neck at two levels, C4-C5 and C5-C6, or receiving shots and physical therapy. Steyskal also informed Javorsky of a procedure called \u201cmicro endoscopic diskectomy\u201d (MED), performed by Dr. Timothy Adamson, a neurosurgeon practicing in Charlotte. The procedure was less invasive and required less recovery time than a fusion. Thereafter, Dr. Adamson determined that Javorsky was a candidate for the procedure. Javorsky elected the MED.\nAfter the MED, Javorsky testified that she still felt some of the burning sensation in her right shoulder blade, and her neck was weak, but she did not have the pain that she once had. Javorsky returned to work but did not perform total lifts anymore. She was afraid to do too much.\nOn 17 August 2007, New Hanover Regional filed a Form 19, Employer\u2019s Report of Employee\u2019s Injury or Occupational Disease to the Industrial Commission. On 19 September 2007, Javorsky spoke with New Hanover Regional adjuster Sheri Teeter via phone. Teeter asked Javorsky how she was injured and investigated the claim by reviewing the Form 19 accident report and medical records. A week later, Teeter asked that Javorsky make a recorded statement. Javorsky refused. On 26 September 2007, Javorsky filed a Form 18, Notice of Accident to Employer. On 28 September 2007, New Hanover Regional filed a Form 61, Denial of Workers\u2019 Compensation Claim, and indicated that Javorsky had not described a specific traumatic incident or an injury by accident, had not experienced pain while performing her job, and had refused to give a recorded statement. Javorsky filed a Form 33, Request that Claim be Assigned for Hearing.\nOn 28 March 2008, the matter came before Deputy Commissioner Kim Ledford. On 4 June 2009, the Deputy Commissioner filed an Opinion and Award ordering that New Hanover Regional pay for all reasonably necessary medical treatment provided for Javorsky\u2019s neck injury occurring on 18 June 2007, including treatment rendered and recommended by Dr. Adamson and Coastal Neurosurgery. Dr. Adamson and Coastal Neurosurgery were appointed as authorized treating physicians. Javorsky was granted temporary total disability benefits for the period 22 October 2007 through 11 November 2007, and Javorsky\u2019s attorney fees were to be deducted from the sum paid. Javorsky and New Hanover Regional appealed to the Full Commission (the Commission).\nThe Commission heard the matter on 16 November 2009 and, in an Opinion and Award entered 13 January 2010, adopted, in large part, the Opinion and Award of the Deputy Commissioner but also ordered New Hanover Regional to pay for medical treatment necessary for Javorsky\u2019s left shoulder and to pay her attorney a fee of $3,700.00. New Hanover Regional appeals.\nOn appeal, New Hanover Regional presents the following issues: Did the Commission err in concluding that, as a consequence of her neck injury, (I) New Hanover Regional shall pay for medical treatment for Javorsky\u2019s left shoulder; and (II) medical treatment from two physicians located more than 200 miles apart is reasonable or necessary. Did the Commission err in (III) making findings of fact as to the current status of individuals involved in the matter and (IV) awarding Javorsky attorney fees.\nStandard of Review\n\u201cUnder the Workers\u2019 Compensation Act, \u2018[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u2019 \u201d Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965)). \u201c[Our Supreme] Court has explained that the Commission\u2019s findings of fact \u2018are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary.\u2019\u201d Hassell v. Onslow County Bd. of Educ., 362 N.C. 299, 305, 661 S.E.2d 709, 714 (2008) (citation omitted). \u201cThis Court\u2019s standard for reviewing an appeal from the full Commission is limited to determining \u2018whether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u2019\u201d Rhodes v. Price Bros., Inc., 175 N.C. App. 219, 220, 622 S.E.2d 710, 712 (2005) (quoting Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000)).\nI\nNew Hanover Regional argues that the Commission erred in finding and concluding that as a result of Javorsky\u2019s neck injury she required medical treatment for her left shoulder and that the hospital was financially responsible. We disagree.\nIn cases involving \u201ccomplicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.\u201d Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980)). . . . The evidence must be such as to take the case out of the realm of conjecture and remote possibility, that is, there must be sufficient competent evidence tending to show a proximate causal relation.\u201d Gilmore v. Hoke Cty. Bd. of Educ., 222 N.C. 358, 365, 23 S.E.2d 292, 296 (1942) (discussing the standard for compensability when a work-related accident results in death).\nHolley v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750, 753 (2003).\nHere, the Commission made the following conclusion.\n2. As a consequence of her neck injury, [Javorsky] needed medical treatment, including the treatment and surgery performed by Dr. Adamson, as well as treatment for her left shoulder, and [New Hanover Regional is] responsible for the same.\nThe Commission also made the following pertinent findings of fact.\n21. Dr. Adamson testified to his opinion to a reasonable degree of medical certainty more probably than not that the June 18, 2007 lifting event and the C5-C6 disc herniation were causally linked. He also testified that the fact that [Javorsky] had no neck pain reported in a November 2006 visit to Employee Health provided even more evidence to support his opinion, as did the fact that he did not visualize any calcification or spur formation at C5-C6, which means that the herniation was a fairly recent process. This also correlated with her complaints, his physical findings and his objective findings on the MRI, and these findings all reaffirmed each other.\n27. In regard to [Javorsky\u2019s] left shoulder pain, Dr. Adamson testified that [Javorsky\u2019s] history on the onset of pain in her left shoulder correlated with her work related C5-C6 disc herniations. Thus, the Full Commission finds that the evidence supports a causal connection between the specific incident of June 18, 2007 and [Javorsky\u2019s] left-sided pain.\nIn his deposition, Dr. Timothy Adamson gave the following testimony:\nA. ... The description [Javorsky] has filled in graphically draw ing onto the \u2014 the little caricature of a body shows that she had the pins and needles and burning sensations down from the top of the right shoulder down into the right hand and out the thumb.\nQ. And how about that little X that she has there by the left shoulder blade? Did she discuss that at all with you?\nA. No, but that\u2019s an incredibly common site for pain to show up in anybody who is having a cervical disc problem.\nQ. And why is that?\nA. It\u2019s a \u2014 It\u2019s a referred pain site. It\u2019s kind of like why people with heart attacks will have left arm pain or gallbladder attacks will have right shoulder pain. It\u2019s just \u2014 It\u2019s the inside edge of the shoulder blade below the affected compressed nerve and it\u2019s probably present 80 percent of the time.\nQ. And so based on that being your experience with the prevalence being about 80 percent in patients that have the referred pain down the arm what is your opinion as to whether or not to a reasonable degree of medical certainty more probably than not that is related to the disc herniation that you observed at C5-6?\nA. I believe it is related to that.\nWe hold that Dr. Adamson\u2019s medical testimony, that Javorsky\u2019s left shoulder pain is causally related to her compensable neck injury, takes the case out of the realm of conjecture and remote possibility and provides sufficient, competent evidence of a proximate causal relation to support the Commission\u2019s findings of fact and subsequent conclusion of law. Accordingly, New Hanover Regional\u2019s argument is overruled.\nII\nNext, New Hanover Regional argues that the Commission erred in appointing Dr. Adamson and Coastal Neurosurgery as Javorsky\u2019s authorized treating physicians. New Hanover Regional argues that because the physicians are located 200 miles apart and New Hanover Regional is responsible for travel expenses and lodging, along with treatment, such an appointment is an abuse of discretion. We disagree.\nOur Supreme Court has stated that \u201can injured employee has the right to procure, even in the absence of an emergency, a physician of [her] own choosing, subject to the approval of the Commission.\u201d Deskins v. Ithaca Indus., Inc., 131 N.C. App. 826, 831, 509 S.E.2d 232, 235 (1998) (citing Schofield v. Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980)). \u201c[T]he approval of a physician . . . lies within the discretion of the Commission.\u201d Franklin v. Broyhill Furniture Indus., 123 N.C. App. 200, 207, 472 S.E.2d 382, 387 (1996); see also N.C. Gen. Stat. \u00a7 97-25 (2009) (\u201can injured employee may select a physician of his own choosing to attend, prescribe and assume the care and charge of his case, subject to the approval of the Industrial Commission.\u201d). \u201cAn abuse of discretion results only where a decision is manifestly unsupported by reason or ... so arbitrary that it could not have been the result of a reasoned decision.\u201d Goforth v. K-Mart Corp., 167 N.C. App. 618, 624, 605 S.E.2d 709, 713 (2004) (citations omitted).\nHere, the Commission made the following conclusion:\n2. As a consequence of her neck injury, [Javorsky] needed medical treatment, including the treatment and surgery performed by Dr. Adamson, as well as treatment for her left shoulder, and [New Hanover Regional is] responsible for payment of the same.\nIn its award, the Commission stated\n1. [New Hanover Regional] shall pay for all reasonably necessary medical treatment provided for [Javorsky\u2019s] neck injury of June 18, 2007, including the treatment rendered today by Dr. Adamson and Coastal Neurosurgery, and additional cost including [Javorsky\u2019s] lodging and mileage for her surgery....\n2. [New Hanover Regional] shall pay for any treatment recommended by Dr. Adamson, to include a return visit to Dr. Adamson, and further treatment recommended by Coastal Neurosurgery....\n5. Coastal Neurosurgery and Dr. Adamson are hereby appointed as [Javorsky\u2019s] authorized treating physicians.\nWe note that the Commission made several unchallenged findings of fact which support its conclusion of law number 2 and subsequent award.\n12. [Javorsky] saw Physician\u2019s Assistant Christopher Steyskal at Coastal Neurosurgical on September 18, 2007, and he recommended an anterior cervical discectomy and fusion at C4-C5 and C5-C6. P.A. Steyskal later opined that the microendoscopic discectomy (\u201cMED\u201d) at C5-C6 was a reasonable option versus the more invasive procedure he had recommended.\n18. Dr. Adamson determined that [Javorsky] was a candidate for less invasive surgery through her history, a physical examination and his review of her imaging studies. . . .\n24. The surgery performed by Dr. Adamson was helpful to [Javorsky] in relieving pain.\nGiven that Dr. Adamson performed the MED on Javorsky, but is located approximately 200 miles away from Javorsky\u2019s more immediate medical care provider, Coastal Neurosurgery, and acknowledging the practical considerations of making follow-up medical visits to review Javorsky\u2019s progress, we hold the Commission did not abuse its discretion in ordering New Hanover Regional to pay for Javorsky\u2019s reasonable medical treatment as well as attendant travel expenses. Accordingly, New Hanover Regional\u2019s argument is overruled.\nIll\nNext, New Hanover Regional argues that the Commission erred in making findings of fact regarding the current status of Javorsky and Susan Ramsey despite a lack of new evidence before the Commission and a record that had not changed since the matter was heard before a deputy commissioner.\nNew Hanover Regional argues that there is no competent evidence to support the Commission\u2019s finding that \u201cSusan Ramsey ... is currently the patient safety manager for [New Hanover Regional]\u201d and that \u201c[Javorsky] continues to experience weakness in her neck at times arid left shoulder blade pain . . . .\u201d However, as these findings were based on competent evidence received as of the date of the hearing, New Hanover Regional fails to show error or prejudice from these findings of fact. Accordingly, this argument is overruled.\nIV\nLast, New Hanover Regional argues that the Commission erred by ordering it to pay attorney fees in the amount of $3,700.00 to Javorsky\u2019s attorney, pursuant to N.C. Gen. Stat. \u00a7 97-88.1. We disagree.\nUnder North Carolina General Statutes, section 97-88.1, \u201c[i]f the Industrial Commission shall determine that any hearing has been brought, prosecuted, or defended without reasonable ground, it may assess the whole cost of the proceedings including reasonable fees for defendant\u2019s attorney or plaintiff\u2019s attorney upon the party who has brought or defended them.\u201d N.C. Gen. Stat. \u00a7 97-88.1 (2009).\nThe purpose of this section is to prevent \u201cstubborn, unfounded litigiousness which is inharmonious with the primary puj\u00f3se of the Workers\u2019 Compensation Act to provide compensation to injured employees.\u201d Beam v. Floyd\u2019s Creek Baptist Church, 99 N.C. App. 767, 768, 394 S.E.2d 191, 192 (1990) (citations omitted). In such cases, the Commission is empowered to award: the whole cost of the proceedings including [reasonable attorney\u2019s fees].\nTroutman v. White & Simpson, Inc., 121 N.C. App. 48, 54, 464 S.E.2d 481, 485 (1995). \u201cThe decision of whether to make such an award, and the amount of the award, is in the discretion of the Commission, and its award or denial of an award will not be disturbed absent an abuse of discretion.\u201d Id. at 54-55, 464 S.E.2d at 486 (citing Taylor v. J.P. Stevens Co., 307 N.C. 392, 394, 298 S.E.2d 681, 683 (1983); N.C. Gen. Stat. \u00a7 97-90 (1991)).\nNew Hanover Regional denied Javorsky\u2019s claim that her injury sustained 18 June 2007 was compensable. The Commission found that the New Hanover Regional adjuster\u2019s investigation of Javorsky\u2019s claim was comprised of reviewing the Form 19 accident report and medical records; however, she failed to interview the witness listed on the accident report. In denying her claim, New Hanover Regional indicated that Javorsky \u201chad not described a specific traumatic incident or an injury by accident, that she did not experience pain while performing her job duties and that she had refused to give a recorded statement. [New Hanover Regional] also took the position that [Javorsky] had not timely reported her injury.\u201d With the exception of Javorsky\u2019s refusal to give a recorded statement, there was competent evidence before the Deputy Commissioner and the Full Commission that even after plaintiff reported her injury by accident and even after medical experts testified that her injuries were causally related to the work place injury, New Hanover Regional continued to deny the claim as compensable. We believe such actions are inharmonious with the primary purpose of the Workers\u2019 Compensation Act to provide compensation to injured employees and such actions evidence stubborn, unfounded litigiousness. Therefore, we hold that the Commission did not abuse its discretion in awarding Javorsky $3,700.00 under N.C. Gen. Stat. \u00a7 97-88.1, and accordingly, New Hanover Regional\u2019s argument is overruled.\nAffirmed.\nJudges STEELMAN and HUNTER, Robert N., Jr., concur.\n. New Hanover Regional specifically cites Little v. Penn Ventilator Co., 317 N.C. 206, 345 S.E.2d 204 (1986), for the proposition that N.C.G.S. \u00a7 97-25 \u201crequires defendants to pay for future medical treatment as long as they [the treatments] are reasonably required to (1) effect \u00e1 cure or (2) give relief.\u201d However, we note that this language from a former version of \u00a7 97-25 was deleted by our legislature in a 1991 amendment of the statute. See Franklin, 123 N.C. App. at 207, 472 S.E.2d at 387.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson, for plaintiff-appellee.", "Hedrick, Gamer, Kinch\u00e9loe & Garofalo, L.L.P., by Kari A. Lee and Justin D. Robertson, for defendant-appellant." ], "corrections": "", "head_matter": "AMY JAVORSKY, Employee, Plaintiff v. NEW HANOVER REGIONAL MEDICAL CENTER, Employer, SELF-INSURED (ALLIED CLAIMS ADMINISTRATION, INC., Servicing Agent), Defendant\nNo. COA10-454\n(Filed 21 December 2010)\n1. Workers\u2019 Compensation\u2014 neck injury \u2014 findings\u2014medical treatment required \u2014 supported by evidence\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding and concluding that plaintiff required medical treatment for her neck injury and that her employer, a hospital, was financially responsible. There was medical testimony that took the case out of the realm of conjecture and remote possibility and provided sufficient, competent evidence of a proximate causal relation to support the Commission\u2019s findings and subsequent conclusion.\n2. Workers\u2019 Compensation\u2014 neck injury \u2014 microsurgery\u2014 treating physicians \u2014 two hundred miles apart\nThe Industrial Commission did not err in a workers\u2019 compensation case by appointing treating physicians located 200 miles apart where there were unchallenged findings that less invasive microsurgery was a reasonable option. Given the practical considerations of follow-up visits to the provider of the microsurgery, the Commission did not abuse its discretion by ordering defendant to pay for plaintiffs reasonable medical treatment as well as attendant travel expenses.\n3. Workers\u2019 Compensation\u2014 findings \u2014 current status \u2014 evidence at hearing\nThere was no error or prejudice in a workers\u2019 compensation hearing where the Industrial Commission made findings about the current status of plaintiff and of the patient safety manager for defendant employer. Those findings were based on competent evidence received as of the date of the hearing.\n4. Workers\u2019 Compensation\u2014 attorney fees \u2014 stubborn litigiousness\nThe Industrial Commission did not abuse its discretion in a workers\u2019 compensation case by ordering defendant to pay attorney fees to plaintiff\u2019s attorney where defendant\u2019s denials of plaintiff\u2019s claim evidenced stubborn, unfounded litigiousness.\nAppeal by defendant from Opinion and Award entered 13 January 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 26 October 2010.\nPoisson, Poisson & Bower, PLLC, by E. Stewart Poisson, for plaintiff-appellee.\nHedrick, Gamer, Kinch\u00e9loe & Garofalo, L.L.P., by Kari A. Lee and Justin D. Robertson, for defendant-appellant." }, "file_name": "0644-01", "first_page_order": 668, "last_page_order": 678 }