in the Court of Appeals 9 August 2016.
by Defendants from an Opinion and Award entered 10 November
2015 by the Full North Carolina Industrial Commission.
Shelby Pethel and Hudson, P.A., by David A. Shelby, for
Hedrick Gardner Kincheloe & Garofalo, LLP, by Holly M.
Stott and M. Duane Jones, for Defendant-Appellants.
appeal involves a commonly relied upon presumption in North
Carolina workers' compensation law, which shifts from an
employee to an employer the burden of proof for causation of
an injury. At issue is whether the North Carolina Industrial
Commission erred by applying this presumption, known as the
Parsons presumption, to a medical condition not
listed on an employer's admission of compensability form.
Wal-Mart Associates, Inc., employer, and National Union Fire
Insurance Co., carrier, (collectively "Defendants")
appeal from an Opinion and Award of the Full North Carolina
Industrial Commission (the "Commission") awarding
Patricia Pine, employee, ("Plaintiff") compensation
for medical treatment for injuries to her neck, wrist,
shoulder, hand, and left knee and ongoing disability
an amendment to the North Carolina Workers Compensation Act
by the North Carolina General Assembly, we hold that it was
error for the Commission to apply the Parsons
presumption in this case. However, the error does not require
reversal because the Commission also found that Plaintiff had
proved by a preponderance of the evidence that her additional
medical conditions were causally related to her workplace
injury, thereby satisfying her burden of proof absent the
presumption. Accordingly, we affirm the Commission's
Opinion and Award.
and Procedural History
December 2011, while at work, Plaintiff tripped and fell
face-forward over the bottom of a stairway ladder. As she
fell, she extended her right arm to break the fall; her wrist
hit the floor first, followed by her right shoulder area, her
left knee, and her chest near her collarbone. One of
Plaintiff's co-workers witnessed the fall and confirmed
that Plaintiff complained of left knee and right hand, wrist,
and shoulder pain.
Plaintiff, at the direction of her employer, went to Dr.
Clifford Callaway, who diagnosed her with a shoulder sprain.
Plaintiff followed up with Dr. Callaway several times
throughout January 2012. Dr. Callaway updated his diagnosis
to include a left knee sprain, a cervical strain, and a wrist
sprain, and referred Plaintiff to Dr. James Comadoll, an
Comadoll ordered an MRI of Plaintiff's right shoulder and
diagnosed Plaintiff with a possible right rotator cuff tear
and a left knee contusion. Plaintiff followed up with Dr.
Comadoll within one month complaining of neck soreness and
issues with range of motion. Dr. Comadoll ordered an
to look for signs of nerve entrapment. The EMG showed
Plaintiff suffered from carpal tunnel syndrome in her right
wrist, so Dr. Comadoll performed a carpal tunnel release
surgery. Because Plaintiff still complained of left knee
pain, Dr. Comadoll ordered an MRI of Plaintiff's left
knee, which showed a possible lateral meniscus anterior horn
Comadoll referred Plaintiff to Dr. Michael Getter, a
board-certified orthopedic surgeon who specializes in spinal
surgery, for further evaluation of her continued complaints
of numbness and pain in her upper extremities. Dr. Getter
ordered a cervical MRI for Plaintiff, which showed
degenerative disc disease causing stenosis compressing the
nerve at C4-5, C5-6, and C6-7. Dr. Getter recommended surgery
to decompress the nerve and to prevent progressive
neurological problems and muscle atrophy.
request of Defendants, Plaintiff underwent additional medical
examinations. Dr. Joseph Estwanik diagnosed Plaintiff with a
partial full thickness tear of her right rotator cuff for
which he recommended arthroscopic surgery. Dr. Louis Koman, a
board-certified orthopedic surgeon with a certificate of
subspecialty in hand surgery, diagnosed Plaintiff with a
carpal boss, a traumatic sagittal band rupture, and cervical
spine pathology that was causing some residual symptoms in
her right upper extremity despite the carpal tunnel release.
Plaintiff filed a Form 18, Notice of Accident to
Employer, related to her fall at work, citing injuries
to her "RUE, LLE, neck and any other injuries causally
related." In response, Wal-Mart filed a Form 60,
Employer's Admission of Employee's Right to
Compensation, admitting compensability for
Plaintiff's claim with regard to the injuries suffered to
her right shoulder and arm. Wal-Mart subsequently filed a
Form 61, Denial of Workers' Compensation Claim,
denying compensability for Plaintiff's cervical spine
condition as "a new injury outside of her
employment" and "unrelated to the original
a hearing before the Industrial Commission, deputy
commissioner Kim Ledford issued an Opinion and Award
concluding, as shown by the greater weight of competent
medical opinion, that as a consequence of her workplace
accident Plaintiff not only suffered the shoulder injury
admitted by Wal-Mart, but also sustained injuries to her
right wrist and left knee and aggravated her pre-existing
cervical disc condition. Both parties appealed to the Full
additional proceedings, the Commission found, inter
20. Based upon a preponderance of the evidence, the Full
Commission places greater weight on the testimony of Dr.
Callaway, Dr. Comadoll, Dr. Getter, and Dr. Koman, than that
of Dr. Estwanik, and finds that Plaintiff's pre-existing
cervical disc disease was aggravated by her fall at work on
December 29, 2011. Additional medical treatment with Dr.
Getter, including but not limited to surgery, is reasonable
and necessary to effect a cure, give relief, or lessen the
period of disability related to this injury.
. . .
22. Based upon a preponderance of the evidence in view of the
entire record, the Full Commission finds that Plaintiff's
carpal tunnel syndrome and sagittal band rupture were caused
by the December 29, 2011 injury by accident. The Full
Commission further finds, by a preponderance of the evidence
that Plaintiff's carpal boss was materially aggravated by
the December 29, 2011 injury by accident. Additional medical
treatment, including but not limited to surgery with Dr.
Koman, is reasonable and necessary to effect a cure, give
relief, or lessen the period of disability related to these
Commission concluded that because Wal-Mart accepted as
compensable Plaintiff's right shoulder injuries, a
rebuttable presumption arose that Plaintiff's other
medical conditions were causally related to the compensable
injury. It then concluded:
3. Defendants failed to present sufficient evidence to rebut
the presumption that Plaintiff's carpal tunnel syndrome,
carpal boss, sagittal band rupture, dystrophic right hand
symptoms, neck, and left knee problems are causally related
to the December 29, 2011 injury by accident. See Gonzalez
v. Tidy Maids, Inc., 2015 N.C.App. LEXIS 138, 768 S.E.2d
886 (2015). . . .
Commission awarded Plaintiff "all reasonable and
necessary medical expenses which tend to effect a cure, give
relief or lessen the period of Plaintiff's disability,
incurred or to be incurred by Plaintiff for treatment of her
right shoulder, left knee, right carpal tunnel syndrome,
right sagittal band rupture, right hand dystrophic condition,
right carpal boss, and neck injuries."
argue that the Commission acted under a misapprehension of
the law when it relied on this Court's decision in
Wilkes v. City of Greenville, __ N.C.App. __, __,
777 S.E.2d 282, 286 (2015) (citations omitted), aff'd
in part, aff'd as modified in part, and remanded by
__ N.C. __, 799 S.E.2d 838 (2017), and applied the
presumption established by this Court in Parsons v.
Pantry, Inc., 126 N.C.App. 540, 485 S.E.2d 867 (1997),
shifting to Defendants the burden of proving that
Plaintiff's other injuries were not causally related to
her right shoulder injury suffered in her fall at work.
Defendants further assert that Plaintiff failed to meet her
burden of proof without the Parsons presumption to
establish a causal relationship between the injuries. We
Standard of Review
review of an opinion and award of the North Carolina
Industrial Commission is "limited to determining: (1)
whether the findings of fact are supported by competent
evidence, and (2) whether those findings support the
Commission's conclusions of law." Reed v.
Carolina Holdings, __ N.C.App. __, __, 796 S.E.2d 102,
108-09 (2017) (citing Chambers v. Transit Mgmt., 360
N.C. 609, 611, 636 S.E.2d 553, 555 (2006)). Findings of fact
supported by competent evidence are binding on appeal,
Chaisson v. Simpson, 195 N.C.App. 463, 470, 673
S.E.2d 149, 156 (2009), and unchallenged findings of fact are
presumed to be supported by competent evidence, Morgan v.
Morgan Motor Co. of Albemarle, 231 N.C.App. 377, 380,
752 S.E.2d 677, 680 (2013). However, the Commission's
conclusions of law are reviewed de novo. McRae
v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695,
701 (2004). And "[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." Ballenger v. ITT Grinnell Indus.
Piping, Inc., 320 N.C. 155, 158, 357 S.E.2d 683, 685
(1987) (citation omitted).
Defendants specifically challenge the Commission's
Conclusions of Law Numbers 1 and 3 related to Plaintiff's
neck, wrist, and hand injuries, asserting that the Commission
misapplied the Parsons presumption to those medical
conditions not previously admitted by Wal-Mart in its Form
60. This argument is supported by a recent statutory
amendment, even though the amendment was enacted while this
appeal has been pending. However, the error does not require
reversal because the Commission made adequate findings that
Plaintiff met her burden of proving causation without the
North Carolina Workers' Compensation Act requires
employers to provide medical compensation for the treatment
of compensable injuries, including "additional medical
compensation . . . directly related to the compensable
injury" that is designed to effectuate a cure, provide
relief, or lessen the period of disability. Perez v.
American Airlines/AMR Corp., 174 N.C.App. 128, 135, 620
S.E.2d 288, 292 (2005) (internal quotation marks and citation
omitted); N.C. Gen. Stat. § 97-25 (2015). "It is
well established that an employee seeking compensation for an
injury bears the burden of demonstrating that the injury
suffered is causally related to the work-related
accident." Wilkes, __ N.C.App. at __, 777
S.E.2d at 286.
Court has long held that once an employee obtained a
compensation award for a workplace injury, if that employee
seeks additional compensation for treatment of later
developing medical conditions claimed to be causally related
to the compensable injury, the Commission should presume
"that the additional medical treatment is directly
related." Perez, 174 N.C.App. at 135, 620
S.E.2d at 292; Parsons, 126 N.C.App. at 542, 485
S.E.2d at 869. "The employer may rebut the presumption
with evidence that the medical treatment is not directly
related to the compensable injury." Perez, 174
N.C.App. at 135, 620 S.E.2d at 292. This presumption allows
an employee to obtain additional compensation for medical
conditions related to a compensable injury without having to
re-litigate the issue of causation. Parsons, 126
N.C.App. at 542, 485 S.E.2d at 869 ("To require [a]
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 compensable accident is
unjust and violates our duty to interpret the [Workers'
Compensation] Act in favor of injured employees.").
Parsons, the plaintiff was working as a store clerk
when two men entered the store and assaulted her, striking
her in the forehead and shooting her four times with a stun
gun. Id. at 540, 485 S.E.2d at 868. The Industrial
Commission awarded the plaintiff compensation for her
injuries, which were primarily frequent headaches.
Id. at 540-41, 485 S.E.2d at 868-69. Eight months
after the award, the plaintiff sought compensation for
additional treatment of her headaches, but the Commission
denied her claim because she " 'ha[d] not introduced
any evidence of causation between her injury and her headache
complaints at the time of the hearing' and . . .
'failed to meet her burden of proof for showing the
necessity of continued or additional medical treatment.'
" Id. at 541, 485 S.E.2d at 869. Our Court
reversed the Commission's opinion and award, holding that
"[i]n effect, requiring that [the] plaintiff once again
prove a causal relationship between the accident and her
headaches in order to get further medical treatment ignores
th[e] prior award." Id. at 542, 485 at 869.
Perez, this Court extended the Parsons
presumption to instances in which the Commission had not
directly ruled on compensability of an injury because the
employer had admitted it by filing of a Form 60 and had paid
compensation to the employee. Perez, 174 N.C.App. at
136, 620 S.E.2d at 293 ("As the payment of compensation
pursuant to a Form 60 amounts to a determination of
compensability, we conclude that the Parsons
presumption applies in this context."). The
Perez Court noted that "[t]he presumption of
compensability applies to future symptoms allegedly
related to the original compensable injury."
Id. at 136-37 n. 1, 620 S.E.2d at 293 n. 1 (emphasis
added) (rejecting the defendant's argument that the
plaintiff suffered a different injury from the injury stated
on the Form 60).
Clark v. Sanger Clinic, 175 N.C.App. 76, 623 S.E.2d
293 (2005), this Court declined to extend the
Parsons presumption to an injury that had not
previously been deemed compensable by the Commission. The
Court rejected the plaintiff's argument that the
Parsons presumption applied to the plaintiff's
compensation claim for degenerative arthritis after the
plaintiff had obtained an award for a knee injury caused by
an accident at work. Id. at 79, 623 S.E.2d at 296.
The Clark decision emphasized in its holding the
reasoning in Parsons that the presumption's
purpose was to alleviate a plaintiff from having to re-prove
causation for the "very injury" the Commission
determined compensable. Id. at 76, 623 S.E.2d at 296
(quoting Parsons, 126 N.C.App. at 542, 485 S.E.2d at
Wilkes, this Court again extended the
Parsons presumption, holding that "the
Parsons presumption applies even where the injury or
symptoms for which additional medical treatment is being
sought is not the precise injury originally deemed
compensable." Wilkes, __ N.C.App. at __, 777
S.E.2d at 287 (citing Carr v. Dep't of Health &
Human Servs. (Caswell Ctr.), 218 N.C.App. 151, 156, 720
S.E.2d 869, 874 (2012)). The plaintiff in Wilkes
suffered numerous physical injuries in a work related car
accident, which his employer accepted as compensable.
Id. at, 777 S.E.2d at 284. After the employer began
providing medical compensation for the plaintiff's
physical injuries, the parties disagreed about the extent of
the plaintiff's other injuries. Id. at __, 777
S.E.2d at 284. The plaintiff was seeking compensation for,
inter alia, depression and anxiety, injuries which
were not listed on his employer's Form 60. Id.
at __, 777 S.E.2d at 285. Our Court held that the Commission
erred by failing to apply the Parsons presumption
"to his request for additional medical treatment and
compensation for his complaints of anxiety and
depression." Id. at__, 777 S.E.2d at 285.
this Court heard Defendants' appeal in this case, our
Supreme Court affirmed the holding in
Wilkes which applied the Parsons
presumption to medical conditions not included on an
employer's admission of compensability form, but alleged
to be related to the compensable injury. Wilkes at
__, 799 S.E.2d at 846 ("Accordingly, we conclude that an
admission of compensability approved under [ N.C. Gen. Stat.]
§ 97-82(b) entitles an employee to a presumption that
additional medical treatment is causally related to his
General Assembly, however, promptly abrogated the Supreme
Court's decision in Wilkes by amending N.C. Gen.
Stat. § 97-82. 2017 N.C. Sess. Laws 2017-124. Section 1.
(a) rewrites N.C. Gen. Stat. § 97-82(b) as follows:
(b) If approved by the Commission, a memorandum of agreement
shall for all purposes be enforceable by the court's
decree as hereinafter specified. Payment 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's liability for the
injury as reflected on a form prescribed by the
Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d)
for which payment was made. An award of the Commission
arising out of G.S. 97-18(b) or G.S. 97-18(d) shall not
create a presumption that medical treatment for an injury or
condition not identified in the form prescribed by the
Commission pursuant to G.S. 97-18(b) or G.S. 97-18(d) is
causally related to the compensable injury. An employee may
request a hearing pursuant to G.S. 97-84 to prove that an
injury or condition is causally related to the compensable
injury. Compensation paid in these circumstances shall
constitute payment of compensation pursuant to an award under
2017 N.C. Sess. Laws 2017-124, § 1. (a) (emphasis
added). N.C. Gen. Stat. § 97-18(b) provides that an
employer admits compensability by filing a Form 60 with the
Industrial Commission, and N.C. Gen. Stat. § 97-18(d)
provides that an employer can pay for an employee's
medical treatment without admitting compensability by filing
a Form 63.
1. (b) of the Session Law amending N.C. Gen. Stat. §
97-82 provides that the intent of the General Assembly in
amending the Workers' Compensation Act was "to
clarify, in response to Wilkes v. City of Greenville, that an
injury not identified in an award arising out of [ N.C. Gen.
Stat. §] 97-18(b) or [ N.C. Gen. Stat. §] 97-18(d)
is not presumed to be causally related to the compensable
injury . . . ." 2017 N.C. Sess. Laws 2017-124, § 1.
(b). The statutory amendment binds our decision in this case
because Section 1. (c) provides that the statute applies to
all claims "accrued or pending prior to, on, or
after" the date on which the amendment became law. 2017
N.C. Sess. Laws 2017-124, § 1. (c).
medical conditions Plaintiff seeks compensation for were not
admitted by Wal-Mart because they were not listed on its
admission of compensability form. Plaintiff's reliance on
this Court's decision in Wilkes fails in light
of the General Assembly actions. We therefore hold that the
Commission's application of the Parsons
presumption in this case was error. Generally, such an error
would require a remand to the Commission for the application
of the correct legal standard. However, as explained below,
we instead affirm the Commission's Opinion and Award
because it includes factual ...