“Insofar as the Commission in this case failed to address whether plaintiff requested a change of physician within a reasonable time, we remand this matter to the Commission for further findings on this issue.”
How later courts described this case
- “Insofar as the Commission in this case failed to address whether plaintiff requested a change of physician within a reasonable time, we remand this matter to the Commission for further findings on this issue.”
Written by the judges who cited it.
The opinion
Chief Judge HEDRICK
concurring.
I concur in the opinion of the majority reversing and remanding this proceeding to the Industrial Commission for a “hearing on the issue of when plaintiff reached maximum medical improvement” and for a hearing with respect to “whether plaintiff sought approval by the Commission for treatment by Dr. Miller within a reasonable time after procuring his assistance.” In my opinion, the proceeding before the Industrial Commission, in addition to being “de novo” as directed by the majority opinion, should be conducted pursuant to the provisions of G.S. 97-85.
In Joyner v. Rocky Mount Mills, 92 N.C. App. 478 , 374 S.E.2d 610 (1988), we undertook, in considerable detail, to explain the duties of the full Commission in reviewing a case pursuant to G.S. 97-85. In Joyner , we also explained that the North Carolina Industrial Commission does not judicially review cases pursuant to G.S. 97-85 in the same way that an appellate court reviews cases from the trial courts, and we suggested that the better practice to be followed by the full Commission is to make its own findings of fact, conclusions of law and enter an appropriate order rather than adopt the findings and conclusions of the hearing officer. Id. at 482-483 , 374 S.E.2d at 613 . The full Commission has consistently ignored what we perceived to be helpful suggestions in Joyner , and the present case is no different.
*9 Here, Deputy Commissioner Dianne C. Sellers, writing for the full Commission, stated, inter alia, that:
The Full Commission adopts as its own the Opinion and Award, as modified, of the Deputy Commissioner. The result reached by her [Deputy Commissioner Morgan S. Chapman] is hereby, in all respects, Modified and Affirmed.
In reality, the decision of the full Commission reversed the decision of the Deputy Commissioner requiring defendant to:
1. . . . pay additional temporary total disability compensation to plaintiff at the rate of $40.38 per week for 23 5/7 weeks for the period from January 20 through July 4,1987
2. . . . pay compensation to plaintiff for temporary total disability at the rate $146.35 per week for 58 6/7 weeks, for the period from July 5, 1987 through August 16, 1988, and continuing thereafter until she is released to return to work by her physician, she returns to work, or she reaches maximum medical improvement ....
3. . . . pay all medical expenses incurred by plaintiff as a result of this injury by accident, excluding those arising from the surgery performed by Dr. Miller, when bills for the same have been submitted through the defendant to the Industrial Commission and approved by the Commission.
Moreover, in its decision, the full Commission found and concluded that:
2. As a result of the compensable injury plaintiff sustained a five percent (5°/o) permanent partial disability of her back. N.C.G.S. 97-31(15).
Yet, the full Commission made no award for plantiff’s permanent partial disability and gave no explanation as to why no award was made. This omission, as well as the errors cited by the majority, on the part of the full Commission requires that the decision of the full Commission be reversed and the case remanded to the full Commission to “review the award, . . . reconsider the evidence, receive further evidence, rehear the parties or their representatives and, if proper, amend the award” pursuant to G.S. 97-85 without remanding the case to the Deputy Commissioner.