{
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  "name": "GEORGE E. WATKINS, Employee, Plaintiff v. CITY OF ASHEVILLE, Employer, Self-Insured, Defendant",
  "name_abbreviation": "Watkins v. City of Asheville",
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  "casebody": {
    "judges": [
      "Judges GREENE and LEWIS concur."
    ],
    "parties": [
      "GEORGE E. WATKINS, Employee, Plaintiff v. CITY OF ASHEVILLE, Employer, Self-Insured, Defendant"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nPlaintiff first argues that the Full Commission erred in finding as fact \u201c[t]hat the surgery recommended by plaintiff\u2019s physician has a high probability of significantly reducing the period of plaintiff\u2019s disability and would be sought by a similarly situated reasonable man.\u201d For the reasons set forth below, we find no error. .\nIn reviewing an opinion and award of the Industrial Commission, this Court is limited in its inquiry to two questions of law: \u201c(1) whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether . . . the findings of fact of the Commission justify its legal conclusions and decisions.\u201d Dolbow v. Holland Industrial, 64 N.C. App. 695, 696, 308 S.E.2d 335, 336 (1983), disc. review denied, 310 N.C. 308, 312 S.E.2d 651 (1984) (citation omitted). Because the Commission is the sole judge of the credibility of the witnesses and the weight given to their testimony, the Commission may assign more credibility and weight to certain testimony than other testimony. Furthermore, the determination of the Commission is conclusive upon appeal even though the evidence is capable of supporting two contrary findings. Id. at 697, 308 S.E.2d at 336 (citations omitted).\nThe Commission\u2019s \u201cfindings of fact may be set aside on appeal only when there is a complete lack of competent evidence to support them.\u201d Mayo v. City of Washington, 51 N.C. App. 402, 406, 276 S.E.2d 747, 750 (1981), citing, Click v. Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d 389, 390-91 (1980). \u201c[I]f the totality of the evidence, viewed in the light most favorable to the complainant, tends directly or by reasonable inference to support the Commission\u2019s findings, these findings are conclusive on appeal even though there may be plenary evidence to support findings to the contrary.\u201d Id. at 406-07, 276 S.E.2d at 750 (citations omitted).\nWith these basic principles in mind, we now turn to whether there is competent evidence in the case before us to support the Commission\u2019s finding \u201c[t]hat the surgery recommended by plaintiff\u2019s physician has a high probability of significantly reducing the period of plaintiff\u2019s disability and would be sought by a similarly situated reasonable man.\u201d\nThe controversy over this finding of fact arises under N.C. Gen. Stat. \u00a7 97-25 (1985), which states in part,\nThe refusal of the employee to accept any medical, hospital, surgical or other treatment or rehabilitative procedure when ordered by the Industrial Commission shall bar said employee from further compensation until such refusal ceases and no compensation shall at any time be paid for the period of suspension unless in the opinion of the Industrial Commission the circumstances justified the refusal, in which case, the Industrial Commission may order a change in the medical or hospital service.\nThis portion of \u00a7 97-25 was construed in Crawley v. Southern Devices, Inc., 31 N.C. App. 284, 229 S.E.2d 325 (1976), disc. review denied, 292 N.C. 467, 234 S.E.2d 2 (1977). The Crawley Court stated that:\nThe general rule is that where the surgery is of serious magnitude and risk, involves much pain and suffering and is of uncertain benefit, the refusal of the claimant to undergo surgery is reasonable and will not prejudice his claim.\nId. at 290, 229 S.E.2d at 329 (citations omitted).\nDavid O. Jarrett, M.D., orthopaedic surgeon, qualified as an expert witness, and testified before the Commission that he provided a course of treatment for plaintiff as a result of plaintiff\u2019s back injury. This course of treatment began on 16 May 1986 and included hospital treatment in May 1986 and eight days of hospital treatment and diagnosis in February 1987. Dr. Jarrett\u2019s testimony addressed both the probability that surgery would significantly reduce plaintiff\u2019s disability and plaintiff\u2019s refusal of such surgery.\nDr. Jarrett testified that he recommended that plaintiff undergo back surgery (lumbar laminectomy with removal of the disc) in order to alleviate plaintiff\u2019s condition and possibly return to work. Dr. Jarrett further testified that it was his opinion in July 1987 that plaintiff\u2019s condition would be improved with surgery and that his disability would be reduced from a 100% disability without surgery to a 10% to 15% disability with the surgery.\nAccording to Dr. Jarrett, the longer plaintiff waited to have surgery, the \u201cpoorer the results.\u201d Dr. Jarrett explained this statement, \u201c[i]n my own experience, the patients that have surgery that actually had a disc fragment out as this man has had, do well and are able to continue on life in a normal manner.\u201d Dr. Jarrett also testified that \u201c[b]etter than 90% of the patients that have a laminectomy within a year are almost back to normal.\u201d While Dr. Jarrett could not testify that plaintiff would definitely improve with surgery, his testimony supported the Commission\u2019s finding that the recommended surgery \u201chad a high probability of significantly reducing the period of plaintiff\u2019s disability . . . .\u201d\nWe will now address that portion of the Commission\u2019s finding that the recommended surgery \u201cwould be sought by a similarly situated reasonable man.\u201d Under \u00a7 97-25, reasonableness is determined by whether the surgery is of serious magnitude and risk, involves much pain and suffering and is of uncertain benefit. 31 N.C. App. at 290, 229 S.E.2d at 329-30.\nRegarding whether the surgery is of serious magnitude and risk, Dr. Jarrett explained that although he considered this surgery \u201cof serious magnitude and risk,\u201d lumbar laminectomies are \u201cfairly common,\u201d that the risks \u201care unusual but they can occur\u201d and that there are \u201csimilar risks associated with most any surgical procedure that a person would undergo.\u201d He further testified that he has performed hundreds of laminectomies and that plaintiff is not \u201cat a higher risk as a surgical candidate than [any other] patient.\u201d\nDr. Jarrett further testified concerning the pain and suffering associated with the surgery. He stated that the \u201csurgery involves considerable pain but the pain is short-lived [a week or so].\u201d\nDr. Jarrett did not testify to the \u201ccertain benefit\u201d of the surgery to plaintiff. He testified, however, to the probabilities of plaintiff\u2019s condition improving after surgery as discussed above. He also stated that for \u201csome patients\u201d this surgery has an \u201cuncertain outcome.\u201d Dr. Jarrett testified that he last examined plaintiff in February 1989 and recommended surgery at that time to improve plaintiff\u2019s condition.\nRichard Weiss, M.D., neurosurgeon, examined plaintiff on referral by defendant, and was deposed concerning his medical findings and conclusion on 25 May 1988. Dr. Weiss generally concurred with Dr. Jarrett\u2019s findings and recommendations, except that he believed the risk of the surgery is \u201cminimal.\u201d\nThere is ample evidence to support plaintiff\u2019s arguments and his valid concerns about this surgical procedure. However, there is sufficient evidence under the previously stated principles of law to support the Commission\u2019s determination that the surgery is not of serious magnitude and risk, does not involve much pain and suffering and is not of uncertain benefit to plaintiff.\nTherefore, we are compelled to affirm the Commission\u2019s decision \u201c[t]hat the surgery recommended by plaintiff\u2019s physician has a high probability of significantly reducing the period of plaintiff\u2019s disability and would be sought by a similarly situated reasonable man.\u201d Based upon the Legislature\u2019s intent to authorize the Commission upon proper findings to require plaintiff to undergo that surgery or lose his right to compensation, we must affirm no matter how seemingly valid plaintiff\u2019s reasons are for refusing to submit to surgery.\nWe have considered plaintiff\u2019s remaining assignment of error that the Commission erred in concluding as a matter of law that defendant was entitled to an order that plaintiff undergo a lumbar laminectomy or forego compensation on the grounds that defendant\u2019s request for such an order was not timely. We find this assignment to be without merit.\nFor the reasons set forth above, we find that the Commission did not err in its finding of fact or conclusion of law.\nAffirmed.\nJudges GREENE and LEWIS concur.",
        "type": "majority",
        "author": "ORR, Judge."
      }
    ],
    "attorneys": [
      "DeVere C. Lentz, Jr., P.A., by Shirley H. Brown, for plaintiff-appellant.",
      "Nesbitt & Slawter, by William F. Slawter; and Russell & King, P.A., by J. William Russell and Kathy A. Gleason, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "GEORGE E. WATKINS, Employee, Plaintiff v. CITY OF ASHEVILLE, Employer, Self-Insured, Defendant\nNo. 8910IC1186\n(Filed 3 July 1990)\nMaster and Servant \u00a7 69 (NCI3d)\u2014 workers\u2019 compensation\u2014 surgery\u2019s effect on disability \u2014reasonableness of employee\u2019s refusal to have surgery \u2014finding supported by evidence\nEvidence was sufficient to support the finding by the Industrial Commission that a lumbar laminectomy recommended by plaintiffs orthopaedic physician had a high probability of significantly reducing the period of plaintiff\u2019s disability and would be sought by a similarly situated reasonable man. Therefore, the Commission properly ordered that plaintiff undergo such surgery or lose his right to compensation. N.C.G.S. \u00a7 97-25.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7 3S6.\nAPPEAL by plaintiff from Opinion and Award entered 8 May 1989 for the Full Industrial Commission by J. Randolph Ward, Commissioner. Heard in the Court of Appeals 4 May 1990.\nOn 14 April 1986, plaintiff sustained a back injury arising out of and in the course of his employment with defendant. Plaintiff incurred temporary total disability on 14 May 1986 and returned to work on 7 July 1986. Plaintiff became disabled again on 17 February 1987, and was entitled to workers\u2019 compensation of $179.20 per week from 17 February 1987 until the end of the temporary total disability period.\nThis matter was heard initially before Deputy Commissioner Morgan S. Chapman on 15 April 1988. By Opinion and Award filed 3 August 1988, Deputy Commissioner Chapman found that plaintiff had not reached maximum medical improvement and awarded plaintiff temporary total disability compensation \u201cfor so long as [such] disability continues.\u201d The Hearing Commissioner also found that back surgery recommended by plaintiff\u2019s orthopaedic surgeon involved substantial risks and concluded that plaintiff\u2019s decision to avoid such surgery was reasonable.\nDefendant appealed to the Full Commission. The Full Commission entered an Opinion and Award on 8 May 1989, which struck the finding of fact that plaintiff\u2019s refusal to have surgery was reasonable and concluded as a matter of law that plaintiff undergo surgery or forego compensation.\nFrom the Opinion and Award of 8 May 1989, plaintiff appeals.\nDeVere C. Lentz, Jr., P.A., by Shirley H. Brown, for plaintiff-appellant.\nNesbitt & Slawter, by William F. Slawter; and Russell & King, P.A., by J. William Russell and Kathy A. Gleason, for defendant-appellee."
  },
  "file_name": "0302-01",
  "first_page_order": 332,
  "last_page_order": 336
}
