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    "parties": [
      "JOHNNIE WILKES, Employee v. CITY OF GREENVILLE, Employer, SELF-INSURED (PMA MANAGEMENT GROUP, Third-Party Administrator)"
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        "text": "HUDSON, Justice.\nPlaintiff Johnnie Wilkes appealed the opinion and award of the North Carolina Industrial Commission concluding that: (1) plaintiff failed to meet his burden of establishing that his anxiety and depression were a result of his work-related accident; and (2) plaintiff was not entitled to disability payments made after 18 January 2011. Wilkes v. City of Greenville, _ N.C. App. _, _, _, 777 S.E.2d 282, 284-85, 289 (2015). On appeal, the Court of Appeals unanimously vacated and remanded in part, holding that on remand in reviewing plaintiffs entitlement to medical treatment, the Commission should give plaintiff the benefit of a presumption that his anxiety and depression were related to his injuries, and reversed in part, holding that plaintiff had met his burden of establishing disability. Id. at _, _, 777 S.E.2d at 285-91. Because we agree that plaintiff was entitled to a presumption of com-pensability in regards to his continued medical treatment, we affirm that portion of the decision of the Court of Appeals. Because we conclude further that the Commission failed to address the effects of plaintiff\u2019s tinnitus in determining whether he lost wage-earning capacity, we modify and affirm that portion of the Court of Appeals\u2019 decision, and remand for further proceedings not inconsistent with this opinion.\nBackground\nPlaintiff was employed by defendant as a landscaper for approximately nine years before 21 April 2010, when he was involved in a motor vehicle wreck while on the job. Plaintiff was driving a truck owned by defendant when a third party ran a red light and struck plaintiff\u2019s vehicle. The truck then collided with a tree, causing the windshield to break and the airbags to deploy. Plaintiff was taken to the emergency room at Pitt County Memorial Hospital and treated for his injuries, which included an abrasion on his head, three broken ribs, and injuries to his neck, back, pelvis, and hip. The following day, plaintiff returned to the ER complaining of dizziness; an MRI revealed that plaintiff had suffered a concussion from the accident. Slightly over a week later, on 29 April 2010, defendant filed a Form 60 with the North Carolina Industrial Commission, in which defendant accepted plaintiff\u2019s claim as compensable under the Workers\u2019 Compensation Act (Act), and described the injury as \u201cworker involved in MVA and had multiple injuries to ribs, neck, legs and entire left side.\u201d Defendant began paying plaintiff compensation for temporary total disability and provided medical compensation for plaintiff\u2019s injuries.\nPlaintiff saw numerous physicians over the next year for treatment and evaluation of continuing complaints of pain in his back and leg, ringing in his ears (tinnitus), anxiety and depression, and sleep loss. On 18 January 2011, defendant filed a Form 33 requesting that plaintiff\u2019s claim be assigned for a hearing before the Commission, stating that the \u201c[pjarties disagree about the totality of plaintiffs complaints related to his compensable injury and need for additional medical evaluations.\u201d On 28 January 2011, plaintiff filed a Form 33 requesting an \u201cExpedited Medical Motion\u201d hearing, listing his work-related injuries as \u201chead, back, depression, ringing in ears [tinnitus], memory loss, speech changes, dizziness, balance, etc.,\u201d and stating that he was \u201cin need of additional medical treatment . . . specifically an evaluation by a neurosurgeon.\u201d After a conference call hearing on 4 February 2011, plaintiff saw Robert Lacin, M.D., a neurosurgeon; the Commission held a subsequent conference call hearing on 7 April 2011, and declined to refer plaintiff to a neuropsychiatrist.\nEventually, the matter was heard in person before Deputy Commissioner Mary C. Vilas on 21 September 2011, after which depositions of medical personnel were taken. On 1 February 2013, Deputy Commissioner Vilas entered an opinion and award determining that plaintiff\u2019s low back and leg pain, anxiety, depression, sleep disorder, tinnitus, headaches, and temporomandibular joint pain were causally related to his 21 April 2010 compensable injury. Deputy Commissioner Vilas also determined that plaintiff had established temporary total disability by demonstrating \u201cthat he is capable of some work but that it would be futile to seek work at this time because of preexisting conditions of his age, full-scale IQ of 65, education level and reading capacity at grade level 2.6, previous work history of manual labor jobs, and his physical conditions resulting from his April 21, 2010 compensable injury.\u201d Accordingly, the deputy commissioner ordered defendant to pay plaintiff temporary total disability until he returned to work or until further order of the Commission and to pay all medical expenses reasonably required to effect a cure or lessen plaintiff\u2019s period of disability. Defendant appealed to the Full Commission (Commission).\nThe Commission heard the case on 4 November 2013, and considered the parties\u2019 stipulations, exhibits, testimony from multiple witnesses, including plaintiff and plaintiff\u2019s wife, and depositions taken from Doctors Albemaz, Tucci, Latin, Schulz, Hervey, and Gualtieri. The Commission found that plaintiff suffered tinnitus as a result of the 21 April 2010 accident, but that the evidence regarding his alleged anxiety and depression was conflicting. The Commission noted, for example, that \u201cDr. Schulz diagnosed Plaintiff with malingering along with possible mild depression,\u201d and that \u201cDr. Gualtieri concurred with Dr. Schulz\u2019s diagnosis of symptom exaggeration and malingering.\u201d On the other hand, \u201cDr. Hervey disagreed with Dr. Schulz\u2019s malingering diagnosis .... Dr. Hervey noted \u2018apparent distress\u2019 and diagnosed Plaintiff with depression and anxiety,\u201d while Dr. Tucci diagnosed Plaintiff with \u201csevere tinnitus\u201d and testified that the tinnitus was \u201cwrapped up with the anxiety or depression.\u201d Accordingly, the Commission found, in relevant part:\n34. Based on the preponderance of the evidence, including testimony by Doctors Albemaz and Tucci, the Full Commission concludes that Plaintiff has not reached maximum medical improvement with regard to his tinnitus.\n35. Testimony by Plaintiff, Plaintiff\u2019s wife, and Doctors Latin, Schulz, Hervey, and Gualtieri is conflicting as to whether Plaintiff is currently suffering from anxiety and depression. Based upon a preponderance of all the evidence of record, the Full Commission concludes that Plaintiff\u2019s alleged anxiety and depression was not caused by the 21 April 2010 work-related accident.\nBased on these findings of fact, the Commission concluded that while plaintiff was entitled to medical compensation for his tinnitus, plaintiff had failed to meet his burden of establishing that he had anxiety and depression caused by his work-related accident, and that therefore, plaintiff was not entitled to medical compensation for those conditions. The Commission further concluded that plaintiff was not entitled to any disability payments made after 18 January 2011 (the date defendant filed a Form 33 requesting a hearing on plaintiff\u2019s claims), and that defendant was entitled to a credit for any payments it had made after that date. More specifically, the Commission made the following relevant conclusions of law:\n2. . . . Based upon all credible evidence, the Full Commission concludes that Plaintiff has met his burden of showing that on 21 April 2010 he suffered compensa-ble injuries [t\u00f3] his head and ears leading to tinnitus as a result of a traffic accident arising out of the course and scope of his employment with Employer-Defendant.\n4. Plaintiff is entitled to the payment of past and future medical expenses incurred for treatment that was reasonably required to effect a cure, provide relief or lessen any disability, including such further treatment for his tinnitus that may be recommended by Doctors Tucci and Albemaz.\n5. Where depression or other emotional trauma has been caused by a compensable accident and injury, and such depression or trauma has caused disability, then total disability benefits may be allowed. Here, the evidence is conflicting as to whether Plaintiff has suffered from depression and whether any depression was caused by the 21 April 2010 work-related accident. Based upon the preponderance of the evidence, the Full Commission concludes that Plaintiff has not met his burden of showing that his alleged depression and anxiety is a result of the 21 April 2010 work-related accident or has caused him any temporary disability.\n6. ... The Full Commission concludes that Plaintiff has not presented evidence of a reasonable job search and has presented insufficient evidence that a job search would be futile. Thus, the Full Commission concludes that Plaintiff is entitled to temporary total disability benefits from the 21 April 2010 work-related injury until 18 January 2011, the date that Employer-Defendant filed a Form 33 requesting a hearing on Plaintiffs claims.\n(Citations omitted.) On 9 April 2014, the Commission issued its opinion and award, from which plaintiff appealed.\nIn a unanimous opinion, the Court of Appeals first vacated the portion of the opinion and award concerning plaintiff\u2019s request for additional medical treatment for anxiety and depression. Wilkes, _ N.C. App. at _, _, 777 S.E.2d at 287-88, 292. In light of the court\u2019s previous decisions in Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997), and Perez v. American Airlines/AMR Corp., 174 N.C. App. 128, 620 S.E.2d 288 (2005), disc. rev. improvidently allowed per curiam, 360 N.C. 587, 634 S.E.2d 887 (2006), the court held that the Commission erred by not applying the rebuttable Parsons presumption to plaintiff\u2019s anxiety and depression, and instead placing the burden on plaintiff to demonstrate causation of those conditions. Wilkes, _ N.C. App. at _, 777 S.E.2d at 285-88. The court remanded the matter to the Commission to \u201capply the Parsons presumption and then make a new determination as to whether Plaintiff\u2019s psychological symptoms are causally related to the 21 April 2010 injury.\u201d Id. at _, 777 S.E.2d at 287-88.\nAdditionally, the court reversed the portion of the Commission\u2019s opinion and award terminating plaintiff\u2019s total temporary disability benefits. Id. at _, 777 S.E.2d at 292. Noting the testimony of Kurt Voos, M.D., who \u201cauthorized Plaintiff to return to work at sedentary duty with permanent restrictions including lifting up to 10 lbs with occasional walking and standing,\u201d the court stated that based on this testimony the Commission had found that plaintiff was \u201cincapable of returning to his previous job but is capable of working in sedentary employment.\u201d Id. at _, 777 S.E.2d at 289. The court also took note of other facts found by the Commission:\nSpecifically, the Commission found that Plaintiff (1) was 60 years old at the time of the hearing; (2) had been employed as a landscaper with Defendant since 2001; (3) had been employed in medium and heavy labor positions throughout his entire adult life; (4) attended school until the tenth grade; (5) was physically incapable of performing his former job as a landscaper/laborer; (6) has \u201cdifficulty reading and comprehending\u201d written material as evidenced during his evaluation with Dr. Peter Schulz; and (7) has \u201can IQ of 65, putting him in the impaired range.\u201d\nId. at _, 777 S.E.2d at 289. The court held that with this evidence, plaintiff had met his initial burden of showing that a job search would be futile so as to shift the burden to his employer to show that suitable jobs were available. Id. at _, 777 S.E.2d at 289-90. Because defendant made no such showing, the court concluded that \u201cthe Commission erred in ruling that Plaintiff was not temporarily totally disabled,\u201d and that the Commission\u2019s \u201cconclusions of law reaching the opposite result were not supported by the findings of fact contained within its Opinion and Award.\u201d Id. at _, 777 S.E.2d at 291.\nDefendant filed a petition for discretionary review, which this Court allowed on 13 April 2016.\nI. Medical Compensation\nHere defendant argues that the Court of Appeals erred in holding that plaintiff was entitled to a presumption that his anxiety and depression were causally related to his compensable injuries. We do not agree, and affirm the Court of Appeals on this issue.\nOur review of an order of the Commission is limited to determining \u201cwhether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000); see also N.C.G.S. \u00a7 97-86 (2015). But, \u201c[w]hen the Commission acts under a misapprehension of the law, the award must be set aside and the case remanded for a new determination using the correct legal standard.\u201d Ballenger v. ITT Grinnell Indus. Piping, Inc., 320 N.C. 155, 158, 357 S.E.2d 683, 685 (1987) (citing, inter alia, Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266 (1930)). \u201cWhen considering a case on discretionary review from the Court of Appeals, we review the decision for errors of law.\u201d Irving v. Charlotte-Mecklenburg Bd. of Educ., 368 N.C. 609, 611, 781 S.E.2d 282, 284 (2016) (citing N.C. R. App. P. 16(a)).\nIn construing the provisions of the Workers\u2019 Compensation Act, \u201c[w]e have held in decision after decision that our Workmen\u2019s Compensation Act should be liberally construed to effectuate its purpose to provide compensation for injured employees or their depen-dants, and its benefits should not be denied by a technical, narrow, and strict construction.\u201d Hollman v. City of Raleigh, 273 N.C. 240, 252, 159 S.E.2d 874, 882 (1968) (citing 3 Strong\u2019s North Carolina Index: Master and Servant \u00a7 45 (I960)). But, we are mindful that the Act \u201cwas never intended to be a general accident and health insurance policy.\u201d Weaver v. Swedish Imports Maint., Inc., 319 N.C. 243, 253, 354 S.E.2d 477, 483 (1987). We have also noted that \u201c[t]he primary purpose of legislation of this kind is to compel industry to take care of its own wreckage.\u201d Barber v. Minges, 223 N.C. 213, 216, 25 S.E.2d 837, 839 (1943); see also Deese v. Se. Lawn & Tree Expert Co., 306 N.C. 275, 278, 293 S.E.2d 140, 143 (1982) (\u201c[I]n all cases of doubt, the intent of the legislature regarding the operation or application of a particular provision is to be discerned from a consideration of the Act as a whole\u2014its language, purposes and spirit.\u201d).\nA claim for benefits under the Workers\u2019 Compensation Act \u201cis the right of the employee, at his election, to demand compensation for such injuries as result from an accident.\u201d Biddix v. Rex Mills, Inc., 237 N.C. 660, 663, 75 S.E.2d 777, 780 (1953). Under the terms of the Act, an \u201cinjury\u201d is compensable when it is: (1) by accident; (2) arising out of employment; and (3) in the course of employment. N.C.G.S. \u00a7 97-2(6) (2015); Gallimore v. Marilyn\u2019s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977).\nWhen the employee suffers a compensable injury, \u201c[m]edical compensation shall be provided by the employer.\u201d N.C.G.S. \u00a7 97-25(a) (2015) (emphasis added); Mehaffey v. Burger King, 367 N.C. 120, 124, 749 S.E.2d 252, 255 (2013) (\u201cThe Act places upon an employer the responsibility to furnish \u2018medical compensation\u2019 to an injured employee.\u201d). \u201cMedical Compensation\u201d includes any treatment that \u201cmay reasonably be required to effect a cure or give refief\u2019 or \u201ctend to lessen the period of disability.\u201d N.C.G.S. \u00a7 97-2(19) (2015); see also Little v. Penn Ventilator Co., 317 N.C. 206, 213, 345 S.E.2d 204, 209 (1986) (\u201cIn our judgment refief embraces not only an affirmative improvement towards an injured employee\u2019s health, but also the prevention or mitigation of further decline in that health due to the compensable injury.\u201d); Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869 (\u201c \u2018Logically implicit\u2019 in this statute is the requirement that the future medical treatment be \u2018directly related to the original compensable injury.\u2019 \u201d (quoting Pittman v. Thomas & Howard, 122 N.C. App. 124, 130, 468 S.E.2d 283, 286, disc. rev. denied, 343 N.C. 513, 472 S.E.2d 18 (1996))). The employee\u2019s \u201cright to medical compensation\u201d continues until \u201ctwo years after the employer\u2019s last payment of medical or indemnity compensation.\u201d N.C.G.S. \u00a7 97-25.1 (2015) (emphasis added). At that point, the right to medical compensation terminates, unless, before the end of that period: \u201c(i) the employee files with the Commission an application for additional medical compensation which is thereafter approved by the Commission, or (ii) the Commission on its own motion orders additional medical compensation.\u201d Id.\nThe question here concerns whether, when an injury has previously been established as compensable, a presumption arises that additional medical treatment is related to the compensable injury. While we have yet to address whether a presumption arises in the context of medical compensation, the Court of Appeals first addressed this issue in Parsons v. Pantry, Inc.\nIn Parsons the plaintiff was working in the defendant\u2019s store late at night when two men entered. 126 N.C. App. at 540-42, 485 S.E.2d at 868. One of the men struck the plaintiff in the forehead and shot her multiple times with a stun gun. Id. At a hearing before the Commission, the plaintiff met her burden of establishing that as a result of the incident she suffered compensable injuries, which consisted primarily of headaches. Id. at 540-42, 485 S.E.2d at 868-69. Accordingly, the Commission entered an opinion and award ordering the defendant to pay the plaintiffs medical expenses and to provide additional treatment \u201cwhich tends to effect a cure, give relief, or lessen the plaintiff\u2019s period of disability.\u201d Id. at 540-41, 485 S.E.2d at 868. When the plaintiff subsequently requested a hearing because of the defendant\u2019s failure to pay medical expenses, the Commission denied her any further medical treatment on the basis that she had \u201cnot introduced any evidence of causation between her injury and her headache complaints at the time of the hearing.\u201d Id. at 541, 485 S.E.2d at 868-69. On appeal, the Court of Appeals reversed and remanded, holding that it was error to place the burden on the plaintiff to prove causation in order to obtain additional medical treatment. Id. at 542-43, 485 S.E.2d at 869. The court explained that the plaintiff had met her burden at the initial hearing, and that \u201c[t]o require plaintiff to re-prove causation each time she seeks treatment for the very injury that the Commission has previously determined to be the result of a com-pensable accident is unjust and violates our duty to interpret the Act in favor of injured employees.\u201d Id. at 542, 485 S.E.2d at 869. This presumption that additional medical treatment is directly related to the compen-sable injury has since become known as the 1Parsons presumption.\u201d See Wilkes, _ N.C. App. at _, 777 S.E.2d at 286 (\u201cOnce the employee meets this initial burden, however, a presumption arises\u2014often referred to as the Parsons presumption\u2014that \u2018additional medical treatment is directly related to the compensable injury.\u2019 \u201d (quoting Perez, 174 N.C. App. at 135, 620 S.E.2d at 292)).\nThe Court of Appeals has since held that the Parsons presumption applies both to agreements to pay compensation by means of a Form 21 (\u201cAgreement for Compensation for Disability\u201d) and to cases involving \u201cdirect payment\u201d accompanied by a Form 60 (\u201cEmployer\u2019s Admission of Employee\u2019s Right to Compensation (G.S. \u00a7 97-18(b))\u201d). See Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 259-60, 523 S.E.2d 720, 723-24 (1999); see also Perez, 174 N.C. App. at 135-37, 620 S.E.2d at 292-94. With the filing of a Form 21, the employer agrees after a workplace injury to accept the claim as compensable pursuant.to N.C.G.S. \u00a7\u00a7 97-18 and 97-82. The statutes require the employer to file a \u201cmemorandum of agreement\u201d in the form prescribed by the Commission; once approved, that document constitutes an award of the Commission. N.C.G.S. \u00a7\u00a7 97-82, -87(a)(2) (2015); see also Watkins v. Cent. Motor Lines, Inc., 279 N.C. 132, 138, 181 S.E.2d 588, 593 (1971) (\u201cThe agreement between the parties on Form 21, approved by the Commission .... constituted an award by the Commission . . . .\u201d). The statutes also permit \u201cdirect payment\u201d by the employer, which requires no approval either from the Commission or the employee, and allows the employer to promptly initiate payments to the employee following an injury. N.C.G.S. \u00a7 97-18(b), (d) (2015); id. \u00a7 97-82. In 1994, the legislature enacted direct payment by amending subsection 97-18(b), adding subsection 97-18(d), and amending N.C.G.S. \u00a7 97-82(b). The Workers\u2019 Compensation Reform Act of 1994, ch. 679, secs. 3.1, 3.2, 1993 N.C. Sess. Laws (Reg. Sess. 1994) 394, 400-03. Under the current statutory framework, when the employer proceeds with direct payment, the employer can file with the Commission a Form 60 \u201cadmitting] the employee\u2019s right to compensation\u201d under N.C.G.S. \u00a7 97-18(b). See, e.g., Clark v. Wal-Mart, 360 N.C. 41, 42, 619 S.E.2d 491, 492 (2005). In the alternative, the employer can file a Form 63 under N.C.G.S. \u00a7 97-18(d), in which the employer may initiate payments without prejudice and without admitting liability, after which the employer has ninety days to contest or accept liability for the claim. See, e.g., Johnson v. S. Tire Sales & Serv., 358 N.C. 701, 702, 599 S.E.2d 508, 510 (2004). Notably, N.C.G.S. \u00a7 97-82(b) provides that \u201c[pjayment pursuant to G.S. 97-18(b), or payment pursuant to G.S. 97-18(d) when compensability and liability are not contested prior to expiration of the period for payment without prejudice, shall constitute an award of the Commission on the question of compensability of and the insurer\u2019s liability for the injury for which payment was made.\u201d\nWe hold that plaintiff here is entitled to a presumption that additional medical treatment is related to his compensable conditions. This holding is consistent both with the statutory language and with cases pointing out that \u201ccompensability\u201d and \u201cdisability\u201d are separate issues. We have recognized that a presumption of ongoing disability arises only in limited circumstances\u2014specifically, once the disability has been admitted or proved to the Industrial Coihmission. Johnson, 358 N.C. at 706, 599 S.E.2d at 512. This judicial construction of a presumption of ongoing disability arising based upon an \u201caward of the Commission\u201d dates back to at least 1951. Tucker v. Lowdermilk, 233 N.C. 185, 189, 63 S.E.2d 109, 112 (1951) (\u201cHowever, if an award is made, payable during disability, and there is a presumption that disability lasts until the employee returns td work, there is likewise a presumption that disability ended when the employee returned to work.\u201d); see also Watkins, 279 N.C. at 137, 181 S.E.2d at 592 (\u201cIf an award is made by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work ....\u201d). On that basis, we held that while the employer admits compensability by filing a Form 60, or a Form 63 when the employer fails to contest compensability within the ninety-day period, no presumption of disability arises in those circumstances. Clark, 360 N.C. at 43-46, 619 S.E.2d at 492-94; Johnson, 358 N.C. at 706-07, 599 S.E.2d at 512-13.\nNonetheless, on the issue of compensability in the same circumstances, we view the plain language of N.C.G.S. \u00a7 97-82(b) as dispositive. Subsection 97-82(b) provides that \u201c[pjayment pursuant to G.S. 97-18(b), or payment pursuant to G.S. 9748(d) when compensability and liability are not contested prior to expiration of the period for payment without prejudice, shall constitute an award of the Commission on the question of compensability of and the insurer\u2019s liability for the injury for which payment was made.\u201d (Emphasis added.) Continually placing the burden on an employee to prove that his symptoms are causally related to his admittedly compensable injury before he can receive further medical treatment \u201cignores this prior award.\u201d Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869. Accordingly, we conclude that an admission of com-pensability approved under N.C.G.S. \u00a7 97-82(b) entitles an employee to a presumption that additional medical treatment is causally related to his compensable injury. In reaching this conclusion, we note the mandatory language of N.C.G.S. \u00a7 97-25(a) (stating that \u201c[mjedical compensation shall be provided by the employer\u201d (emphasis added)), as well as the fact that medical compensation encompasses any treatment that \u201cmay reasonably be required to effect a cure or give relief,\u201d Id. \u00a7 97-2(19).\nDefendant contends that the \u201caward\u201d under N.C.G.S. \u00a7 97-82(b) is merely an admission that the employee has suffered an accident arising out of and in the course of employment, and that the specifics of any injury must still be determined by an adjudication of the Commission. We conclude otherwise. Requiring the employee to repeatedly \u201cbuild claims for medical compensation\u201d for an admittedly compensable injury, as argued by defendant, would be inconsistent with the language of N.C.G.S. \u00a7\u00a7 97-25, 97-2(19), and 97-82(b), as well as the purpose and spirit of the Act. We decline to adopt such a narrow interpretation of the Act.\nMoreover, defendant\u2019s proposed interpretation would allow the employer, by \u201cadmitting\u201d that the employee has suffered a compensa-ble injury, to enjoy the right to direct the employee\u2019s medical treatment without accepting the accompanying responsibility to provide medical compensation for any treatment until the employee has proved its relatedness to the compensable injury. We have observed that, concomitant with the employer\u2019s duty under N.C.G.S. \u00a7 97-25 to provide, and the employee\u2019s right to receive, medical compensation, is the employer\u2019s right to direct the medical treatment that it furnishes. Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 586-87, 264 S.E.2d 56, 60 (1980); see N.C.G.S. \u00a7 97-25 (2015). Even before compensability is established, when the employee claims compensation after an injury, the employer has the right to direct the employee to submit to an independent medical examination by one of its authorized physicians. N.C.G.S. \u00a7 97-27(a) (2015); see also Kanipe v. Lane Upholstery, 141 N.C. App. 620, 624, 540 S.E.2d 785, 788 (2000) (\u201cOne of the implicit purposes of this requirement is to enable the employer to ascertain whether the injury is work-related or not and thus whether the claim is indeed compensable.\u201d), disc. rev. denied, 356 N.C. 303, 570 S.E.2d 725 (2002).\nFinally, defendant argues that applying the Parsons presumption to a Form 60 filing will discourage direct payment, upset the framework of the Act, and convert the Act into general health insurance. We are unconvinced. Applying the rebuttable presumption merely removes from the employee seeking medical treatment the burden of proving every time that such treatment is for injuries or symptoms causally related to the admittedly compensable condition. Perez, 174 N.C. App. at 135, 620 S.E.2d at 292. The employer may rebut this presumption with evidence that the condition or treatment is not directly related to the compen-sable injury. Id. at 135, 620 S.E.2d at 292. Defendant has not identified any marked decrease in the use of Form 60s, or any increase in related litigation and costs, since Perez was decided in 2004.\nCertainly, medical issues can be complex and the extent of an employee\u2019s injuries may be difficult to determine at the time of the accident. However, with N.C.G.S. \u00a7 97-27(a) (providing that an employee alleging a compensable injury is required to submit to a medical examination by the employer\u2019s authorized physician) and N.C.G.S. \u00a7 97-18(d) (authorizing payment without prejudice to later contest liability), the legislature has wisely given employers who are uncertain about the compensability of an employee\u2019s injuries the methods to investigate such injuries without admitting any liability under the Act while still providing prompt payments to injured employees.\nIn addition, the legislature has provided more recently for an expedited \u201cmedical motions\u201d procedure, which was utilized here and can quickly be used to rebut the presumption if appropriate. In 2007 the General Assembly amended N.C.G.S. \u00a7 97-78 to require the Commission to implement a plan to expeditiously resolve disputes involving medical compensation. Current Operations and Capital Improvements Appropriations Act of 2007, ch. 323, sec. 13.4A.(a), 2007 N.C. Sess. Laws 616, 787-88. And in 2013 the legislature amended N.C.G.S. \u00a7 97-25(f) to set forth such an expedited procedure. Act of July 9, 2013, ch. 294, sec. 4, 2013 N.C. Sess. Laws 802, 803-04. Thus, our holding on this issue is consistent with both the statutory mandate to provide treatment to the employee and with any employer\u2019s need to quickly rebut the presumption.\nHere, as a result of a motor vehicle crash that occurred within the course and scope of his employment, plaintiff sustained injuries that included an abrasion on his head, three broken ribs, and injuries to his neck, back, pelvis, hip, and entire left side, as well as a concussion. Defendant filed a Form 60 accepting that plaintiff suffered compensable injuries by accident and began paying temporary total compensation and medical compensation for plaintiff\u2019s injuries. Accordingly, when plaintiff sought additional medical treatment for tinnitus, anxiety, and depression, alleging that these conditions were directly related to his compensable injuries, he was entitled to a rebuttable presumption to that effect. It is clear from the Commission\u2019s Conclusions of Law that did it not apply any presumption, and instead placed the initial burden on plaintiff to prove causation for any medical compensation he sought:\n2. The claimant in a workers\u2019 compensation case bears the initial burden of proof, and must establish \u201ceach and every element of compensability,\u201d including a causal relationship between the injury and his employment. Based upon all credible evidence, the Full Commission concludes that Plaintiff has met his burden of showing that on 21 April 2010 he suffered compensable injuries [to] his head and ears leading to tinnitus as a result of a traffic accident arising out of the course and scope of his employment with Employer-Defendant. N.C. Gen. Stat. \u00a7 97-2(6).\n5. . . . Based upon the preponderance of the evidence, the Full Commission concludes that Plaintiff has not met his burden of showing that his alleged depression and anxiety is a result of the 21 April 2010 work-related accident....\n(Citation omitted.) Because the Commission acted under a misapprehension of law, the Court of Appeals vacated the opinion and award on this issue and remanded for application of the presumption; we affirm this portion of the Court of Appeals\u2019 opinion. See Ballenger, 320 N.C. at 158, 357 S.E.2d at 685. We note that plaintiff was evaluated by several physicians and that the Commission found the evidence regarding plaintiff\u2019s anxiety and depression to be \u201cconflicting.\u201d Like the Court of Appeals, \u201c[w]e express no opinion on the question of whether the evidence of record is sufficient to rebut the presumption that Plaintiff\u2019s current complaints are directly related to his initial compensable injury.\u201d Wilkes, _ N.C. App. at _, 777 S.E.2d at 288. We leave this determination to the Commission on remand.\nII. Disability\nOn the issue of disability, the Court of Appeals, relying in part on Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993), held that the uncontroverted evidence establishing plaintiffs cognitive limitations adequately demonstrated that any attempt by him to find other employment would be futile, and therefore, plaintiff was entitled to total disability benefits. Defendant argues that the Court of Appeals erred in reversing the Commission\u2019s termination of plaintiffs temporary total disability benefits. We modify and affirm that decision, and remand for further proceedings.\nAs we explained in Medlin v. Weaver Cooke Construction, LLC, \u201cdisability\u201d is defined by the Act in N.C.G.S. \u00a7 97-2(9) as:\n\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 Id. \u00a7\u00a7 97-2(9) (2013), -2(i) (1930). This definition, we have long and consistently held, specifically relates to the incapacity to earn wages, rather than only to physical infirmity. See, e.g., Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 378-79 (1986); Fleming v. K-Mart Corp., 312 N.C. 538, 541, 324 S.E.2d 214, 216 (1985). In Hilliard [v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982)], we articulated again the three factual elements that a plaintiff must prove to support the legal conclusion of disability:\n[\u201c]We are of the opinion that in order to support a conclusion of disability, the Commission must find: (1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual\u2019s incapacity to earn was caused by plaintiff\u2019s injury. [\u201d]\n367 N.C. 414, 420, 760 S.E.2d 732, 736 (2014). In 1993 the Court of Appeals issued its decision in Russell, apparently to provide examples of methods by which a plaintiff could prove disability as defined above. Here we emphasize that this Court has not adopted Russell, and that the approaches taken therein are not the only means of proving disability. See id. at 422, 760 S.E.2d at 737 (stating that \u201cHilliard was grounded explicitly in the statutory definition of disability in section 97-2; Russell expanded upon, and perhaps diverged from, that grounding\u201d and that the Russell methods \u201care neither statutory nor exhaustive\u201d (emphases added)). In fact, the issue in Russell was \u201cwhether an injured employee seeking an award of total disability under N.C.G.S. \u00a7 97-29, who is unemployed, medically able to work, and possesses no preexisting limitations which would render him unemployable,\" presented sufficient evidence that he was unable to find work. Russell, 108 N.C. App. at 764-65, 425 S.E.2d at 456-57 (emphasis added). Here, where plaintiff has numerous preexisting limitations as found by the Commission (over the age of sixty, limited IQ of sixty-five, limited education and work experience), Russell is inapposite. Again, we have stated that, in determining loss of wage-earning capacity, the Commission must take into account age, education, and prior work experience as well as other preexisting and coexisting conditions. Little v. Arison Cty. Sch. Food Serv., 295 N.C. 527, 532, 246 S.E.2d 743, 746 (1978). While plaintiff here bears the burden of proof to establish disability, once plaintiff has done so, the burden shifts to defendant \u201cto show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations.\u201d Johnson, 358 N.C. at 706, 708, 599 S.E.2d at 512, 513 (quoting Burwell v. Winn-Dixie Raleigh, Inc., 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994) (emphasis omitted)).\nDefendant argues that, in reversing the Commission, the Court of Appeals erroneously overruled an earlier decision of that court in Fields v. H&E Equipment Services, LLC, 240 N.C. App. 483, 771 S.E.2d 791 (2015). It is unclear whether defendant, in relying on Fields, is arguing that plaintiff was required to produce expert testimony to prove that engaging in a job search would be futile under Russell. See Fields, 240 N.C. App. at 483, 771 S.E.2d at 792 (concluding that the plaintiff did not establish futility because he \u201cfailed to provide competent evidence through expert testimony of his inability to find any other work as a result of his work-related injury\u201d (emphasis added)). Because we have held that Russell does not apply here, this argument is misplaced; however, we have never held, and decline to do so now, that an employee is required to produce expert testimony in order to demonstrate his inability to earn wages. A plaintiffs own testimony, as well as that of his lay witnesses, can be quite competent to explain how a plaintiff\u2019s injury and any related symptoms have affected his activities. See Kennedy v. Duke Univ. Med. Ctr., 101 N.C. App. 24, 31, 398 S.E.2d 677, 681 (1990) (\u201cTestimony by the plaintiff him/herself has also been found to be competent on the issue of wage earning capacity.\u201d (citing Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 325, 69 S.E.2d 707, 714 (1952))). If plaintiff shows total incapacity for work, taking into account his work-related conditions combined with the other factors noted above, he is not required to also show that a job search would be futile. See Peoples v. Cone Mills Corp., 316 N.C. 426, 444, 342 S.E.2d 798, 809 (1986) (\u201cIn order to prove disability, the employee need not prove he unsuccessfully sought employment if the employee proves he is unable to obtain employment.\u201d).\nWe have often stated that the Commission must make specific findings that address the \u201ccrucial questions of fact upon which plaintiff\u2019s right to compensation depends.\u201d Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 451, 85 S.E.2d 596, 599 (1955); see also, e.g., Singleton v. Durham Laundry Co., 213 N.C. 32, 34-35, 195 S.E. 34, 35 (1938) (\u201cIt is the duty of the Commission to make such specific and definite findings upon the evidence reported as will enable this Court to determine whether the general finding or conclusion should stand, particularly when there are material facts at issue.\u201d). Here the Commission found the evidence conflicting on whether plaintiff was actually suffering from anxiety and depression, and as a result, the Commission determined that plaintiff had failed to establish that his anxiety and depression were compensable or that they affected his ability to work, thus resulting in disability. The Commission found as fact, in relevant part that:\n35. Testimony by Plaintiff, Plaintiff\u2019s wife, and Doctors Lacin, Schulz, Hervey, and Gualtieri is conflicting as to whether Plaintiff is currently suffering from anxiety and depression. Based upon a preponderance of all the evidence of record, the Full Commission concludes that Plaintiff\u2019s alleged anxiety and depression was not caused by the 21 April 2010 work-related accident.\nThe Commission concluded as a matter of law that:\n5. Where depression or other emotional trauma has been caused by a compensable accident and injury, and such depression or trauma has caused disability, then total disability benefits may be allowed. Here, the evidence is conflicting as to whether Plaintiff has suffered from depression and whether any depression was caused by the 21 April 2010 work-related accident. Based upon the preponderance of the evidence, the Full Commission concludes that Plaintiff has not met his burden of showing that his alleged depression and anxiety is a result of the 21 April 2010 work-related accident or has caused him any temporary disability.\n(Emphasis added and citations omitted.)\nOn the other hand, the Commission found credible plaintiff\u2019s evidence that he was actually suffering from tinnitus, noting plaintiffs numerous complaints dating back to May 2010, and found that he had not reached maximum medical improvement with regard to his tinnitus at the time of the Commission\u2019s opinion and award in April 2014. The Commission specifically found:\n26. On 27 December 2011, Plaintiff saw Dr. Debara Tucci, a board-certified otolaryngologist at Duke University Medical Center, for an evaluation. Dr. Tucci reviewed Plaintiff\u2019s previous medical records, audio-grams and physically examined Plaintiff\u2019s head and ears. Dr. Tucci diagnosed Plaintiff with severe tinnitus and testified that this condition was likely caused by the accident. Dr. Tucci further testified that the tinnitus was \u201cwrapped up with the anxiety or depression\u201d diagnosed in Dr. Hervey\u2019s report, which she reviewed.\n27. Dr. Tucci testified that Plaintiff\u2019s tinnitus was \u201cmore likely than not\u201d a result of the 21 April 2010 accident and was part of the \u201csymptomatology that occurred as a result of the accident.\u201d\nThe Commission awarded plaintiff medical compensation for his tinnitus, including any treatment \u201creasonably required to effect a cure, provide relief or lessen any disability.\" (Emphasis added.) Yet, having found credible evidence of plaintiff\u2019s \u201csevere tinnit\u00fas,\u201d the Commission made no related findings on how plaintiff\u2019s compensable tinnitus and any related symptoms may have affected his ability to engage in wage-earning activities. Accordingly, we remand this case to the Commission to take additional evidence if necessary and to make specific findings addressing plaintiff\u2019s wage-earning capacity, considering plaintiff\u2019s com-pensable tinnitus in the context of all the preexisting and coexisting conditions bearing upon his wage-earning capacity. See Medlin, 367 N.C. at 420, 760 S.E.2d at 736; Peoples, 316 N.C. at 441, 342 S.E.2d at 808 (\u201cIf preexisting conditions such as the employee\u2019s age, education and work experience are such that an injury causes the employee a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the actual incapacity he or she suffers, and not for the degree of disability which would be suffered by someone younger or who possesses superior education or work experience.\u201d (citing Little, 295 N.C. at 532, 246 S.E.2d at 746)).\nConclusion\nIn sum, we hold that the Commission erred in failing to give plaintiff the benefit of a presumption that the additional medical treatment he sought was for conditions related to his compensable injuries. The Commission will reevaluate its decision, applying the correct presumption. As the Court of Appeals correctly addressed this error, we affirm on this issue. On the issue of plaintiffs entitlement to additional disability benefits, we hold that the evidence raises factual issues regarding the effect of plaintiff\u2019s compensable tinnitus on his ability to earn wages, and that, on remand, the Commission must find these facts. Accordingly, on this second issue we modify and affirm the decision of the Court of Appeals. We remand this case to the Court of Appeals for further remand to the Commission for further proceedings not inconsistent with this opinion.\nAFFIRMED IN PART; MODIFIED AND AFFIRMED IN PART, AND REMANDED.\n. To the contrary, following the enactment of direct payment and our holdings in Johnson and Clark, Forms 60 and 63 have essentially replaced Forms 21 and 26. See North Carolina Workers\u2019 Compensation Law: A Practical Guide to Success at Every Stage of a Claim 155-56 (Valerie A. Johnson & Gina E. Cammarano eds., 3d ed. 2016) (\u201cThe use of [Form 21 and Form 26], however, has declined dramatically since the 1994 amendments to the Act. Employers and insurance carriers instead use a Form 60 or Form 63 procedure to admit liability for a claim and pay weekly benefits, without giving rise to any presumption of disability. Thus, the presumption of continuing disability, while it still exists, is increasingly irrelevant.\u201d (citations omitted)).\n. Here, where plaintiff utilized these expedited procedures, the matter might well have been concluded speedily, had the presumption been properly applied.\n. \u201cThe 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, Peoples, 316 N.C. at 443, 342 S.E.2d at 809; (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, id. at 444, [342] S.E.2d at 809; 1C Arthur Larson, The Law of Workmen\u2019s Compensation \u00a7 57.61(d) (1992); (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, Peoples, 316 N.C. at 444, 342 S.E.2d at 809; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the ir\\jury[,] Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 730, 403 S.E.2d 548, 550, disc. rev. denied, 329 N.C. 505, 407 S.E.2d 553 (1991).\u201d Russell, 108 N.C. App. at 765-66, 425 S.E.2d at 457.",
        "type": "majority",
        "author": "HUDSON, Justice."
      }
    ],
    "attorneys": [
      "Hunt Law Firm, PLLC, by Anita B. Hunt; and Patterson Harkavy LLP, by Narendra K. Ghosh, for plaintiff-appellee.",
      "Brooks, Stevens & Pope, P.A., by Matthew P. Blake, for defendant-appellant.",
      "Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson; and Sumwalt Law Firm, by Vernon Sumwalt, for North Carolina Advocates for Justice, amicus curiae.",
      "Young Moore and Henderson, P.A., by Angela Farag Craddock; and Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by M. Duane Jones, for North Carolina Association of Defense Attorneys, North Carolina Chamber, North Carolina Retail Merchants Association, North Carolina Home Builders Association, Employers Coalition of North Carolina, Property Casualty Insurers of America, and American Insurance Association, amici curiae.",
      "Lewis & Roberts, PLLC, by J. William Crone and J. Timothy Wilson, for all amici; Teague, Campbell, Dennis & Gorham, LLP, by Bruce Hamilton, for North Carolina Association of Self-Insurers, and by Tracey Jones, for North Carolina Association of County Commissioners; Allison B. Schafer, Legal Counsel, and Christine T. Scheef Staff Attorney, for N. C. School Boards Association; and Kimberly S. Hibbard, General Counsel, for N.C. League of Municipalities, amici curiae.",
      "Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner; and Law Office of David P. Stewart, by David P. Stewart, for Workers\u2019 Injury Law & Advocacy Group, amicus curiae."
    ],
    "corrections": "",
    "head_matter": "JOHNNIE WILKES, Employee v. CITY OF GREENVILLE, Employer, SELF-INSURED (PMA MANAGEMENT GROUP, Third-Party Administrator)\nNo. 368PA15\nFiled 9 June 2017\n1. Workers\u2019 Compensation-Form 60 compensable injuries\u2014 additional medical treatment sought\u2014presumption in favor of plaintiff\nWhere plaintiff-employee sustained significant physical injuries as a result of an automobile accident that occurred during the course and scope of his employment, and defendant-employer filed a Form 60 accepting that plaintiff had suffered compensable injuries by accident and began paying temporary total compensation and medical compensation for his injuries, the Industrial Commission erred by failing to give plaintiff the benefit of a presumption that the additional medical treatment he sought was for conditions related to his compensable injuries. Plaintiff was entitled to a presumption that additional medical treatment for tinnitus, anxiety, and depression was related to his compensable conditions.\n2. Workers\u2019 Compensation\u2014compensable condition\u2014effect on wage-earning capacity\nIn a Workers\u2019 Compensation case, the Industrial Commission erred by failing to address the effects of plaintiff-employee\u2019s tinnitus in determining whether he lost wage-earning capacity. The case was remanded to the Commission for findings addressing plaintiff\u2019s wage-earning capacity, considering plaintiff\u2019s compensable tinnitus in the context of all the preexisting and coexisting conditions bearing upon his wage-earning capacity.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals,_N.C. App._, 777 S.E.2d 282 (2015), reversing in part and vacating and remanding in part an opinion and award filed on 9 April 2014 by the North Carolina Industrial Commission. Heard in the Supreme Court on 15 February 2017.\nHunt Law Firm, PLLC, by Anita B. Hunt; and Patterson Harkavy LLP, by Narendra K. Ghosh, for plaintiff-appellee.\nBrooks, Stevens & Pope, P.A., by Matthew P. Blake, for defendant-appellant.\nPoisson, Poisson & Bower, PLLC, by E. Stewart Poisson; and Sumwalt Law Firm, by Vernon Sumwalt, for North Carolina Advocates for Justice, amicus curiae.\nYoung Moore and Henderson, P.A., by Angela Farag Craddock; and Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by M. Duane Jones, for North Carolina Association of Defense Attorneys, North Carolina Chamber, North Carolina Retail Merchants Association, North Carolina Home Builders Association, Employers Coalition of North Carolina, Property Casualty Insurers of America, and American Insurance Association, amici curiae.\nLewis & Roberts, PLLC, by J. William Crone and J. Timothy Wilson, for all amici; Teague, Campbell, Dennis & Gorham, LLP, by Bruce Hamilton, for North Carolina Association of Self-Insurers, and by Tracey Jones, for North Carolina Association of County Commissioners; Allison B. Schafer, Legal Counsel, and Christine T. Scheef Staff Attorney, for N. C. School Boards Association; and Kimberly S. Hibbard, General Counsel, for N.C. League of Municipalities, amici curiae.\nLaw Offices of Kathleen G. Sumner, by Kathleen G. Sumner; and Law Office of David P. Stewart, by David P. Stewart, for Workers\u2019 Injury Law & Advocacy Group, amicus curiae."
  },
  "file_name": "0730-01",
  "first_page_order": 806,
  "last_page_order": 824
}