{ "id": 12169086, "name": "DEBORAH MILLER, Employee, Plaintiff v. MISSION HOSPITAL, INC., Employer, SELF-INSURED, Defendant", "name_abbreviation": "Miller v. Mission Hospital, Inc.", "decision_date": "2014-07-01", "docket_number": "No. COA13-1310", "first_page": "514", "last_page": "525", "citations": [ { "type": "official", "cite": "234 N.C. App. 514" } ], "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": "126 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11711886 ], "opinion_index": -1, "case_paths": [ "/nc-app/126/0540-01" ] }, { "cite": "620 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634111 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "293", "parenthetical": "citing Sims v. Charmes/Arby's Roast Beef, 142 N.C. App. 154, 159, 542 S.E.2d 277, 281 (2001)" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0288-01" ] }, { "cite": "403 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "550" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525592 ], "year": 1991, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0726-01" ] }, { "cite": "342 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "809" } ], "opinion_index": 0 }, { "cite": "316 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704100 ], "year": 1986, "pin_cites": [ { "page": "443-44" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0426-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "684" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "citing Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982), Peoples v. Cone Mills Corp., 316 N.C. 426, 443-44, 342 S.E.2d 798, 809 (1986), and Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 730, 403 S.E.2d 548, 550 (1991)" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "year": 1993, "pin_cites": [ { "page": "765-66", "parenthetical": "citing Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982), Peoples v. Cone Mills Corp., 316 N.C. 426, 443-44, 342 S.E.2d 798, 809 (1986), and Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 730, 403 S.E.2d 548, 550 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "579 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185540 ], "year": 2003, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0168-01" ] }, { "cite": "471 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "664", "parenthetical": "\"[T]he signing of the Form 21 agreement established a presumption of the plaintiffs disability. The defendant then presented evidence ... successfully rebutting plaintiffs presumption of disability, and the burden shifted back to the plaintiff.\"" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919994 ], "year": 1996, "pin_cites": [ { "page": "733", "parenthetical": "\"[T]he signing of the Form 21 agreement established a presumption of the plaintiffs disability. The defendant then presented evidence ... successfully rebutting plaintiffs presumption of disability, and the burden shifted back to the plaintiff.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0730-01" ] }, { "cite": "523 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239226 ], "year": 1999, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0255-01" ] }, { "cite": "542 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "281" }, { "page": "282" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439949 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "159" }, { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0154-01" ] }, { "cite": "174 N.C. App. 128", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350684 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "135", "parenthetical": "citing Sims v. Charmes/Arby's Roast Beef, 142 N.C. App. 154, 159, 542 S.E.2d 277, 281 (2001)" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0128-01" ] }, { "cite": "463 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "261" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 538", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916614 ], "year": 1995, "pin_cites": [ { "page": "541-42" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0538-01" ] }, { "cite": "57 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "231 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630523 ], "year": 1950, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0477-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "752", "parenthetical": "quoting Henry v. Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761 (1950)" } ], "opinion_index": 0 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "year": 2003, "pin_cites": [ { "page": "231", "parenthetical": "quoting Henry v. Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761 (1950)" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(19)" }, { "page": "(9)" }, { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "737 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "748-49", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "485 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "869" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 540", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11711886 ], "weight": 3, "pin_cites": [ { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0540-01" ] } ], "analysis": { "cardinality": 907, "char_count": 25374, "ocr_confidence": 0.712, "pagerank": { "raw": 6.492882245155346e-08, "percentile": 0.3993669128972384 }, "sha256": "8d84ca0b62b6301095e246274897400ea6b1ed0441f7505c8e1b621526c831b8", "simhash": "1:36274ce2a7eb0cd0", "word_count": 4006 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C., and BRYANT concur." ], "parties": [ "DEBORAH MILLER, Employee, Plaintiff v. MISSION HOSPITAL, INC., Employer, SELF-INSURED, Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere the Industrial Commission held that defendant had rebutted the presumption that arose by virtue of the filing of a Form 60 and pursuant to Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997), the burden shifted back to plaintiff to establish her continuing need for medical treatment. Where plaintiff failed to meet this burden and failed to present evidence of disability, the Commission properly ordered indemnity and medical compensation to plaintiff terminated.\nI. Factual and Procedural Background\nDeborah Miller (plaintiff) was bom in 1952 and began working for Mission Hospital (defendant) around 1988. In 2003 plaintiff was diagnosed with non-work related cervical spondylosis, a degenerative spinal condition. She underwent cervical fusion surgery at C3-C4 and returned to work in early 2004. On 10 June 2009 plaintiff suffered a compensable injury by accident that aggravated her pre-existing back condition. She was referred to Dr. Stephen David, who treated her from 12 June 2009 until early 2012. Plaintiff had an MRI scan on 14 June 2009. Dr. David reviewed the results and observed a \u201cdisc protrusion at C2-C3\u201d that had not been present in an MRI performed in January 2003. Dr. David believed that the C2:3 disc herniation was a contributing cause of her symptoms, in addition to the exacerbation of her chronic spinal condition.\nOn 2 July 2009 defendant filed an Industrial Commission Form 60 admitting the compensability of plaintiff\u2019s claim for workers\u2019 compensation benefits and describing her injury as a C2-3 disc herniation. Tests performed at the direction of Dr. David revealed that the C2-3 disc herniation was not impinging'upon plaintiff\u2019s spinal nerves. However, plaintiff reported significant pain and difficulty in performing daily activities to Dr. David, who treated her with cervical epidural injections, physical therapy, heat and ice on the affected areas, and various medications.\nOn 2 February 2010 plaintiff had a functional capacity evaluation, and on 12 February 2010 Dr. David examined plaintiff and reviewed the results of the evaluation. He concluded that plaintiff had reached maximum medical improvement and could return to work full time, with restrictions. However, a few weeks later, plaintiff reported to Dr. David that her symptoms had gotten worse. Dr. David found plaintiff \u201cdifficult to treat\u201d because, despite the variety of treatments she did not have \u201cany significant break-throughs,\u201d and his notes from 16 June 2010 state that he found it necessary to \u201cwrite her out of work permanently.\u201d\nDefendant hired a private investigator, who made videos in March 2010 depicting plaintiff engaging in daily activities over anumber of days. On 19 April 2011 plaintiff was examined by Dr. Dennis White, a specialist in pain medicine. He initially diagnosed plaintiff with \u2018peripheralized\u2019 pain in \u201ca global, nonspecific pain pattern.\u201d However, when Dr. White viewed the video surveillance of plaintiff, he found her movements as shown on the surveillance video to be inconsistent with her behavior and with the symptoms she reported during his examination.\nDr. Craig Brigham, an orthopedic surgeon who specializes in spine surgery, examined plaintiff on 27 January 2011 and found her to have a \u201cnear full range of motion of her cervical spine\u201d as well as a \u201cnormal range of motion of the shoulders.\u201d Dr. Brigham saw no objective reason that plaintiff could not return to full duty work without restriction, and opined that the consequences of her work injury had resolved and that no further treatment was needed. Dr. Dahari Brooks, an orthopedic specialist, reviewed plaintiffs medical records, Dr. Brigham\u2019s notes and the surveillance videos. Based upon his review of these records, Dr. Brooks agreed with Dr. Brigham\u2019s assessment. He observed that the videos showed plaintiff engaging in activities that were inconsistent with the subjective complaints noted in her medical records, and that her physical motions in the surveillance vidoes did not correlate with the restricted motion she described during her office visits. He testified that Plaintiff was capable of returning to full duty work without restriction and did not need further medical treatment.\nOn 23 August 2011 plaintiff filed an Industrial Commission Form 33 requesting that her claim be assigned for hearing. The Full Commission issued its Opinion and Award on 6 August 2013. The Commission concluded that plaintiff had \u201cregained the capacity to earn the same wages she was earning at the time of the injury in the same employment, and therefore, she is not disabled\u201d and that \u201cthere is no need for ongoing medical treatment in this case related to Plaintiff\u2019s injury by accident on June 10, 2009.\u201d The Commission ordered defendant to \u201cstop payment of indemnity and medical compensation to Plaintiff.\u201d\nPlaintiff appeals.\nII. Standard of Review\nThe standard of review in workers\u2019 compensation cases has been firmly established by the General Assembly and by numerous decisions of this Court. . . . Under 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 Therefore, on appeal from an award of the Industrial Commission, review is limited to consideration of whether competent evidence supports the Commission\u2019s findings of fact and whether the findings support the Commission\u2019s conclusions of law. This \u2018court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201c[Fjindings of fact which are left unchallenged by the parties on appeal are \u2018presumed to be supported by competent evidence\u2019 and are, thus \u2018conclusively established on appeal.\u2019 \u201d The \u201cCommission\u2019s conclusions of law are reviewed de novo.\u201d\nSpivey v. Wright\u2019s Roofing, _ N.C. App. _, _, 737 S.E.2d 745, 748-49 (2013) (quotations and citations omitted).\nIII. Commission\u2019s Description of Plaintiff\u2019s Injury\nIn her first argument, plaintiff contends that the Commission erred in Conclusion of Law No. 1 by holding \u201cthat plaintiff had sustained an aggravation of a pre-existing condition\u201d without holding that she had also suffered a disc herniation. Plaintiff does not dispute that she had a pre-existing spinal condition or challenge the evidentiary support for the Commission\u2019s finding that her compensable injury included an exacerbation of this pre-existing condition. Instead, she contends that it was error for the Commission not to specify that she also suffered a disc herniation. Plaintiff appears to argue that (1) defendant attempted \u201cto void the agreement\u201d represented by the execution of an Industrial Commission Form 60 by denying that she had a disc herniation as stated on the Form 60, and that (2) whether or not she suffered a disc herniation was a disputed issue of legal significance which the Commission was required to resolve. We disagree with both assertions.\nPlaintiff does not identify any evidentiary basis for her assertion that defendant attempted to have the Form 60 set aside. For example, she does not contend that defendant filed a motion to have the Form 60 set aside, or that defendant ever denied that plaintiff suffered a compen-sable injury as admitted by the Form 60. The forms filed by the parties make it clear that they agreed that plaintiff had suffered a compensable injury in 2009, but disagreed about whether or not she remained disabled or needed further medical treatment several years later. In the Industrial Commission Form 33 that plaintiff filed to request a hearing, she asserted that \u201cPlaintiff maintains and defendants deny that plaintiff is permanently and totally disabled.\u201d In the Form 33R that defendant filed in response, defendant asserted that \u201cPlaintiff has failed to present sufficient evidence to establish that she remains disabled as a result of her compensable injury or that she is permanently and totally disabled.\u201d Thus, both parties characterized their dispute as a disagreement about the duration of plaintiff\u2019s disability, and not as a conflict about the nature of her original injury or the validity of the Form 60.\nPlaintiff also fails to articulate why the Commission was required to make more detailed findings about her original injury in its determination of whether she was entitled to continued disability or medical compensation at the time of the hearing. Moreover, in its Conclusion of Law No. 3 the Commission specifically addressed the legal implications of the fact that the Form 60 characterizes plaintiff\u2019s injury as a disc herniation. Plaintiff fails to explain how she was prejudiced by the Commission\u2019s failure to specify that she had a C2-3 disc herniation in its Conclusion No. 1, given that this issue is expressly addressed in another conclusion of law.\nWe hold that there is no evidence that defendant attempted to \u201cvoid\u201d the Form 60, and that plaintiff was not prejudiced by the Commission\u2019s characterization of her admittedly compensable injury as an aggravation of her pre-existing condition rather than an aggravation of her condition and also a separate disc herniation.\nThis argument is without merit.\nIV. Cessation of Medical Compensation\nIn her next argument, plaintiff asserts that the Commission\u2019s conclusion that she did not need further medical compensation was \u201cnot supported by the evidence of record or applicable law.\u201d We disagree.\nMedical compensation is defined as \u201cmedical, surgical, hospital, nursing, and rehabilitative services\u201d that \u201cmay reasonably be required to effect a cure or give relief\u2019 or \u201ctend to lessen the period of disability^]\u201d N.C. Gen. Stat. \u00a7 97-2(19). \u201cIn a workers\u2019 compensation claim, the employee \u2018has the [initial] burden of proving that his claim is compensable.\u2019\u201d Holley v. Acts, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 (2003) (quoting Henry v. Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761 (1950)). \u201cThe degree of proof required of a party plaintiff under the Act is the \u2018greater weight\u2019 of the evidence or \u2018preponderance\u2019 of the evidence.\u201d Phillips v. U.S. Air, Inc., 120 N.C. App. 538, 541-42, 463 S.E.2d 259, 261 (1995). \u201cThe employer\u2019s filing of a Form 60 is an admission of com-pensability.\u201d Perez v. Am. Airlines/AMR Corp., 174 N.C. App. 128, 135, 620 S.E.2d 288, 293 (2005) (citing Sims v. Charmes/Arby\u2019s Roast Beef, 142 N.C. App. 154, 159, 542 S.E.2d 277, 281 (2001)). \u201cWhere a plaintiffs injury has been proven to be compensable, there is a presumption that the additional medical treatment is directly related to the compen-sable injury. The employer may rebut the presumption with evidence that the medical treatment is not directly related to the compensable injury.\u201d Perez, 174 N.C. App. at 135, 620 S.E.2d at 292 (citing Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 259, 523 S.E.2d 720, 723 (1999), and Parsons v. Pantry, Inc., 126 N.C. App. 540, 542, 485 S.E.2d 867, 869 (1997). If the defendant rebuts the Parsons presumption, the burden of proof shifts back to the plaintiff. See McCoy v. Oxford Janitorial Service Co., 122 N.C. App. 730, 733, 471 S.E.2d 662, 664 (1996) (\u201c[T]he signing of the Form 21 agreement established a presumption of the plaintiffs disability. The defendant then presented evidence ... successfully rebutting plaintiffs presumption of disability, and the burden shifted back to the plaintiff.\u201d).\nAs discussed above, defendant admitted the compensability of plaintiffs injury by filing a Form 60 on 22 June 2009. Therefore, the issue before the Commission was not whether plaintiff had suffered a com-pensable workplace accident in 2009, or whether she experienced a C2-3 disc herniation, but whether at the time of the hearing she required any further medical treatment for her injury. In this regard, the Commission found in relevant part that:\n3. On June 10, 2009, Plaintiff sustained an injury by accident arising out of and in the course of her employment with Defendant[.]\n6. Plaintiff was referred to Dr. Stephen Michael David ... and began treating with him on June 12, 2009. Plaintiff received conservative treatment from Dr. David from mid-2009 through early 2012[.]...\n7. Dr. David recommended a cervical MRI, which was done on June 14, 2009.... In the opinion of Dr. David, the June 2009 cervical MRI revealed the prior surgical fusion at C3-C4, cervical spondylosis with broad-based disc osteophyte formation at C5-C6, as well as a new central disk protrusion at C2-3....\n9. Nerve conduction studies were done on January 12, 2010, . . . [which showed] no evidence of cervical entrapment....\n11. . . . [0]n February 12, 2010 ... Dr. David assessed Plaintiff at maximum medical improvement . . . [and] released her to return to work with restrictions[.]...\n12. Shortly after being released to return to work with restrictions, Plaintiff returned to Dr. David on March 2, 2010, reporting an aggravation of her neck pain....\n14. Defendant engaged a private investigator to conduct surveillance on Plaintiff....\n15. ... [The video surveillance] shows Plaintiff engaging in many of the activities of daily living. Her movements have been noted to be inconsistent with what was expected by the physicians, based upon her presentations in their offices. The video shows more fluid and natural movement than Plaintiff demonstrated in the offices of the physicians or at the hearing before Deputy Commissioner Ledford.\n21. . . . Plaintiff was examined on April 19, 2011 by Dr. Dennis White, a specialist in pain medicine. Upon examination, Dr. White noted that Plaintiff appeared to be in distress, guarding her neck movements and avoiding any flexion of the neck or gestural range of motion while communicating. According to Dr. White, Plaintiff was deliberately avoiding any movement because of pain....\n23. . . . Dr. White viewed the video of the surveillance of Plaintiff. He found her movements on the surveillance [video] to be inconsistent with what she demonstrated at the time of the examination], and testified that] .... Plaintiffs movement on the surveillance video was natural, spontaneous, gestural, and rhythmic, and that he \u201cdidn\u2019t see any sign of distress whatsoever.\u201d ...\n24. Dr. Craig Brigham, an orthopedic surgeon who specializes in spine surgery, examined Plaintiff on January 27, 2011[.] ... Dr. Brigham found no neurological abnormalities and no motor deficits. Dr. Brigham found \u201cnear full range of motion of her cervical spine considering she has had a 1-level fusion as well as normal range of motion of the shoulders.\u201d ...\n25. Dr. Brigham testified that he saw no acute distress when he examined Plaintiff and ... no objective basis as to why Plaintiff could not return to full duty work without restriction^]... based upon his review of the medical records and what he found to be a lack of objective evidence of ongoing problems, as well as the inconsistencies noted in his physical examination of Plaintiff. He opined that any consequences of the work injury had resolved and no further treatment was needed.\n26. Dr. Dahari Brooks, an orthopaedic specialist, conducted a medical records review... [and] agreed with the assessment of Dr. Brigham. In his opinion, the surveillance footage he reviewed showed Plaintiff engaging in activities which were inconsistent with her subjective pain complaints[.]... Plaintiff\u2019s physical motions as seen in the surveillance footage failed to correlate with the restricted motion she described during the course of her office visits. .. . Dr. Brooks opined that Plaintiff was capable of returning to full duty work without restriction and that she would not need further medical treatment.\n33. Based upon a preponderance of the evidence in view of the entire record, the Full Commission does not find Plaintiff\u2019s testimony regarding the nature and severity of her complaints to be credible.\n34. In assessing the expert medical testimony, the Full Commission places greater weight on the testimony of Dr. Brooks, Dr. White, and Dr. Brigham, as opposed to that of Dr. David[.] . . . There is no objective basis for Plaintiff\u2019s complaints of ongoing, disabling . . . pain, and these complaints are belied by the video surveillance evidence. . . . Dr. David\u2019s opinions are based in large part on Plaintiff\u2019s. subjective complaints, which the Full Commission does not find credible.\nPlaintiff has not challenged the evidentiary support for these findings of fact, which are therefore binding on appeal. Johnson v. Herbie\u2019s Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118 (2003). We hold that these findings support the Commission\u2019s conclusion that \u201cany consequences of Plaintiff\u2019s work-related injury have resolved and that there is no need for ongoing medical treatment in this case related to Plaintiff\u2019s injury by accident on June 10, 2009.\u201d\nIn arguing for a different result, plaintiff appears to argue that the Form 60 automatically entitles her to additional medical compensation. However, in Conclusion No. 3 the Commission addressed the implications of defendant\u2019s execution of the Form 60 and stated that:\n3. Since Defendant filed a Form 60 admitting the com-pensability of Plaintiff\u2019s injury to her spine, specifically her \u201cC2-3 Disk Herniation,\u201d there is a rebuttable presumption that the additional medical treatment for her spine is directly related to the compensable injury. . . . Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997). . . . Defendant has successfully rebutted the Parsons presumption with competent, credible medical evidence that any consequences of Plaintiffs work-related injuiy have resolved and that there is no need for ongoing medical treatment in this case related to Plaintiff\u2019s injury by accident on June 10, 2009. Therefore, the burden shifted back to Plaintiff to prove that her medical conditions axe related to her accident at work on June 10, 2009. The Full Commission concludes that Plaintiff has failed to meet this burden, and therefore, Defendant is not responsible for ongoing medical compensation.\nThis conclusion acknowledges the presumption arising under Parsons from the Form 60, but concludes that defendant successfully rebutted the presumption and that plaintiff failed to meet her burden to produce competent medical evidence that her claim for ongoing medical benefits was \u201crelated to her accident at work on June 10, 2009.\u201d Plaintiff has not challenged the factual or evidentiary support for this conclusion of law, or disputed its legal validity. We hold that the Commission did not err by concluding that plaintiff was not entitled to further medical benefits arising from this claim.\nV. Cessation of Indemnity Compensation\nFinally, plaintiff asserts that the Commission \u201cerred by allowing [defendant] to stop paying indemnity compensation to plaintiff.\u201d We disagree.\nN.C. Gen. Stat. \u00a7 97-2(9) defines \u201cdisability\u201d as an \u201cincapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u201d In is well-established that:\nThe burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment. The employee may meet this burden in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment, (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment, (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment, or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.\nRussell v. Lowe\u2019s Product Distribution, 108 N.C. App. 762, 765-66, 425 S.E.2d 454, 457 (1993) (citing Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982), Peoples v. Cone Mills Corp., 316 N.C. 426, 443-44, 342 S.E.2d 798, 809 (1986), and Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 730, 403 S.E.2d 548, 550 (1991)). In this case, the Commission concluded in relevant part that:\n2. Plaintiff bears the burden of proving disability. ... In the case at bar, Plaintiff has failed to prove disability under any prong of Russell. Moreover, the competent, credible evidence of record establishes that as of January 27, 2011, Plaintiff had regained the capacity to earn the same wages she was earning at the time of the injury in the same employment, and therefore, she is not disabled within the meaning of N.C. Gen. Stat. \u00a7 97-2(9)....\nThis conclusion is supported by the findings quoted above in relation to the issue of plaintiffs entitlement to further medical benefits, by the Commission\u2019s findings detailing plaintiff\u2019s physical abilities as depicted on the surveillance videos, and by its findings that:\n25. Dr. Brigham testified that he saw no acute distress when he examined Plaintiff and that he saw no objective basis as to why Plaintiff could not return to full duty work without restriction....\n26.. . . Based upon his review of the medical records, as well as the surveillance, Dr. Brooks opined that Plaintiff was capable of returning to full duty work without restriction and that she would not need further medical treatment.\nPlaintiff acknowledges that these findings support the Commission\u2019s conclusion that she was no longer disabled. However, she appears .to argue that, because the Form 60 specified that she had suffered a C2-3 disc herniation, the Commission could not properly rely upon an expert\u2019s opinion regarding disability unless the expert \u201cformed this diagnosis [of a disc herniation] as a basis of their opinion.\u201d However, the Form 60, although establishing the compensability of her 9 June 2009 injury, did not give rise to any legal presumption regarding whether she remained disabled in 2012. The \u201cuse of the Form 60 did not entitle plaintiff to a presumption of continuing temporary disability[.]\u201d Sims, 142 N.C. App. at 160, 542 S.E.2d at 282. The Commission\u2019s ruling on plaintiff\u2019s claim for disability required it to determine whether or not plaintiff was capable of returning to work. Plaintiff cites no authority in support of her contention that an expert\u2019s opinion on her ability to return to work in 2012 requires the expert to agree that in 2009 plaintiff suffered the specific injury set out in the Form 60. In other words, plaintiff fails to articulate how the fact that the Form 60 described her injury as a C2-3 disc herniation is relevant to the question of whether or not the symptoms arising from plaintiff\u2019s June 2009 compensable injury had resolved several years later. We hold that the expert opinions of Dr. Brooks and Dr. Brigham that plaintiff was capable of returning to work were not invalidated by the fact that their assessment of plaintiff\u2019s condition was not based on their agreement that plaintiff suffered a disc herniation as a result of her compensable injury, and that the Commission did not err by ruling that plaintiff was no longer disabled.\nFor the reasons discussed above, we hold that the Commission did not err and that its Opinion and Award should be\nAFFIRMED.\nJudges HUNTER, Robert C., and BRYANT concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Root & Root, PLLC, by Louise Critz Root, for plaintiff-appellant.", "Brewer Defense Group, by Joy H. Brewer and, Ginny P. Lanier, for defendant-appellee." ], "corrections": "", "head_matter": "DEBORAH MILLER, Employee, Plaintiff v. MISSION HOSPITAL, INC., Employer, SELF-INSURED, Defendant\nNo. COA13-1310\nFiled 1 July 2014\n1. Workers\u2019 Compensation\u2014compensable injury\u2014aggravation of pre-existing injury\u2014separate injury\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff had sustained an aggravation of a pre-existing condition without also concluding that she had suffered a disc herniation. There was no evidence that defendant attempted to \u201cvoid\u201d the Form 60 and plaintiff was not prejudiced by the Commission\u2019s characterization of her admittedly compensable injury as an aggravation of her pre-existing condition rather than an aggravation of her condition and also a separate disc herniation.\n2. Workers\u2019 Compensation\u2014further medical compensation\u2014 Parsons presumption\u2014burden shifted back to plaintiff\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff did not need further medical compensation. Defendant had rebutted the presumption that arose by virtue of the filing of a Form 60 and pursuant to Parsons v. Pantry, Inc., 126 N.C. App. 540, the burden shifted back to plaintiff to establish her continuing need for medical treatment. Plaintiff failed to meet this burden and failed to present evidence of disability.\n3. Workers\u2019 Compensation\u2014plaintiff no longer disabled\u2014supported by findings\nThe Industrial Commission did not err in a workers\u2019 compensation case by allowing defendant to stop paying indemnity compensation to plaintiff. The Commission\u2019s conclusion that plaintiff was no longer disabled and was able to return to work was supported by the findings.\nAppeal by Plaintiff from Opinion and Award entered 6 August 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 8 April 2014.\nRoot & Root, PLLC, by Louise Critz Root, for plaintiff-appellant.\nBrewer Defense Group, by Joy H. Brewer and, Ginny P. Lanier, for defendant-appellee." }, "file_name": "0514-01", "first_page_order": 524, "last_page_order": 535 }