                             NO. COA 13-1310

                     NORTH CAROLINA COURT OF APPEALS

                            Filed: 1 July 2014


DEBORAH MILLER,
     Employee,
     Plaintiff,

    v.                                   From the Industrial Commission
                                         No. I.C. W29159
MISSION HOSPITAL, INC.,
     Employer,

SELF-INSURED,
     Defendant.

    Appeal 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.


    Root & Root, PLLC, by Louise Critz Root, for plaintiff-
    appellant.

    Brewer Defense Group, by Joy H. Brewer and Ginny P. Lanier,
    for defendant-appellee.


    STEELMAN, Judge.

    Where   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
                                          -2-
evidence      of        disability,     the     Commission      properly        ordered

indemnity and medical compensation to plaintiff terminated.

                    I. Factual and Procedural Background

       Deborah     Miller     (plaintiff)       was   born     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   “disc

protrusion     at       C2-C3”   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.

       On 2 July 2009 defendant filed an Industrial Commission

Form 60 admitting the compensability of plaintiff’s claim for

workers’ 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’s        spinal     nerves.    However,      plaintiff        reported
                                          -3-
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.

    On     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 “difficult to treat”

because, despite the variety of treatments she did not have “any

significant break-throughs,” and his notes from 16 June 2010

state that he found it necessary to “write her out of work

permanently.”

    Defendant hired a private investigator, who made videos in

March 2010 depicting plaintiff engaging in daily activities over

a number of days. On 19 April 2011 plaintiff was examined by Dr.

Dennis   White,      a    specialist      in    pain        medicine.     He    initially

diagnosed      plaintiff    with    ‘peripheralized’             pain   in     “a    global,

nonspecific pain pattern.” However, when Dr. White viewed the

video surveillance of plaintiff, he found her movements as shown
                                         -4-
on the surveillance video to be inconsistent with her behavior

and with the symptoms she reported during his examination.

      Dr. Craig Brigham, an orthopedic surgeon who specializes in

spine surgery, examined plaintiff on 27 January 2011 and found

her to have a “near full range of motion of her cervical spine”

as well as a “normal range of motion of the shoulders.” 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 plaintiff’s medical records, Dr. Brigham’s

notes and the       surveillance videos. Based upon his review of

these records, Dr. Brooks agreed with Dr. Brigham’s 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.

      On 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.
                                     -5-
The   Commission    concluded      that    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”    and   that   “there    is    no   need    for    ongoing   medical

treatment in this case related to Plaintiff’s injury by accident

on June 10, 2009.” The Commission ordered defendant to “stop

payment of indemnity and medical compensation to Plaintiff.”

      Plaintiff appeals.

                          II. Standard of Review

            The   standard      of    review       in    workers’
            compensation      cases      has      been      firmly
            established by the General Assembly and by
            numerous decisions of this Court. . . .
            Under the Workers’ Compensation Act, ‘[t]he
            Commission    is    the    sole     judge     of   the
            credibility of the witnesses and the weight
            to be given their testimony.’ Therefore, on
            appeal from an award of the Industrial
            Commission,      review       is      limited       to
            consideration of whether competent evidence
            supports the Commission’s findings of fact
            and   whether     the    findings      support     the
            Commission’s     conclusions       of     law.    This
            ‘court’s duty goes no further than to
            determine whether the record contains any
            evidence tending to support the finding.’
            “[F]indings     of     fact     which      are    left
            unchallenged by the parties on appeal are
            ‘presumed to be supported by competent
            evidence’    and     are,     thus     ‘conclusively
            established on appeal.’” The “Commission's
            conclusions of law are reviewed de novo.”

Spivey v. Wright’s Roofing, __ N.C. App. __, __, 737 S.E.2d 745,

748-49 (2013) (quotations and citations omitted).
                                                -6-
            III. Commission’s Description of Plaintiff’s Injury

      In    her         first   argument,            plaintiff         contends           that     the

Commission erred in Conclusion of Law No. 1 by holding “that

plaintiff        had     sustained        an     aggravation           of      a        pre-existing

condition” 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’s           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         “to     void     the

agreement”        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.

      Plaintiff 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 compensable injury as admitted
                                                   -7-
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 “Plaintiff maintains and

defendants          deny       that        plaintiff     is     permanently         and    totally

disabled.” In the Form 33R that defendant filed in response,

defendant       asserted          that          “Plaintiff      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.”            Thus,          both    parties       characterized          their

dispute    as       a    disagreement            about   the    duration       of    plaintiff’s

disability,         and     not       as    a    conflict      about   the     nature      of    her

original injury or the validity of the Form 60.

       Plaintiff 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’s         injury       as    a     disc

herniation. Plaintiff fails to explain how she was prejudiced by
                                       -8-
the Commission’s 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.

    We hold that there is no evidence that defendant attempted

to “void” the Form 60, and that plaintiff was not prejudiced by

the Commission’s 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.

    This argument is without merit.

                    IV. Cessation of Medical Compensation

    In      her    next   argument,      plaintiff       asserts    that    the

Commission’s conclusion that she did not need further medical

compensation was “not supported by the evidence of record or

applicable law.” We disagree.

    Medical       compensation    is   defined    as    “medical,    surgical,

hospital,     nursing,    and    rehabilitative        services”    that   “may

reasonably be required to effect a cure or give relief” or “tend

to lessen the period of disability[.]” N.C. Gen. Stat. § 97-

2(19). “In a workers’ compensation claim, the employee ‘has the

[initial] burden of proving that his claim is compensable.’”

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
                                               -9-
S.E.2d 760, 761 (1950)). “The degree of proof required of a

party plaintiff under the Act is the ‘greater weight’ of the

evidence or ‘preponderance’ of the evidence.” Phillips v. U.S.

Air,   Inc.,    120    N.C.    App.       538,       541-42,   463     S.E.2d    259,   261

(1995). “The employer’s filing of a Form 60 is an admission of

compensability.” Perez v. Am. Airlines/AMR Corp., 174 N.C. App.

128,   135,      620   S.E.2d           288,     293      (2005)     (citing     Sims    v.

Charmes/Arby’s Roast Beef, 142 N.C. App. 154, 159, 542 S.E.2d

277, 281 (2001)). “Where a plaintiff’s injury has been proven to

be   compensable,      there       is    a     presumption      that    the     additional

medical treatment is directly related to the compensable injury.

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 (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)

(“[T]he     signing     of     the       Form        21   agreement      established     a

presumption of the plaintiff’s disability. The defendant then

presented      evidence   .    .     .    successfully         rebutting      plaintiff’s
                                    -10-
presumption of disability, and the burden shifted back to the

plaintiff.”).

    As discussed above, defendant admitted the compensability

of plaintiff’s injury by filing a Form 60 on 22 June 2009.

Therefore,   the   issue   before    the    Commission   was   not   whether

plaintiff had suffered a compensable 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:

                                    . . .

         3. On June 10, 2009, Plaintiff sustained an
         injury by accident arising out of and in the
         course of her employment with Defendant[.]

                                    . . .

         6. 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[.] . . .

         7. 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. . . .

                                    . . .
                    -11-
9. Nerve conduction studies were done on
January 12, 2010, . . . [which showed] no
evidence of cervical entrapment. . . .

                    . . .

11. . . . [O]n February 12, 2010 . . . Dr.
David assessed Plaintiff at maximum medical
improvement . . . [and] released her to
return to work with restrictions[.] . . .

12. 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. .
. .

                    . . .

14. Defendant engaged a private investigator
to conduct surveillance on Plaintiff. . . .

15. . . . [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.

                    . . .

21. . . . 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. . . .
                     -12-
                    . . .

23. . . . 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] . . . . Plaintiff’s movement on the
surveillance video was natural, spontaneous,
gestural, and rhythmic, and that he “didn't
see any sign of distress whatsoever.” . . .

24. 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
“near 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.” . . .

25. 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.

26.   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’s physical
motions as seen in the surveillance footage
failed to correlate with the restricted
motion she described during the course of
                                   -13-
           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.

                                   . . .

           33. Based upon a preponderance of the
           evidence in view of the entire record, the
           Full Commission does not find Plaintiff’s
           testimony regarding the nature and severity
           of her complaints to be credible.

           34.   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’s
           complaints of ongoing, disabling . . . pain,
           and these complaints are belied by the video
           surveillance evidence. . . . Dr. David’s
           opinions   are   based   in    large   part   on
           Plaintiff’s subjective complaints, which the
           Full Commission does not find credible.

Plaintiff has not challenged the evidentiary support for these

findings of fact, which are therefore binding on appeal. Johnson

v. Herbie’s Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118

(2003). We hold that these findings support the Commission’s

conclusion that “any consequences of Plaintiff’s work-related

injury   have   resolved   and   that   there   is   no   need   for   ongoing

medical treatment in this case related to Plaintiff’s injury by

accident on June 10, 2009.”

    In arguing for a different result, plaintiff appears to

argue that the Form 60 automatically entitles her to additional
                                          -14-
medical   compensation.           However,       in     Conclusion    No.     3    the

Commission addressed the implications of defendant’s execution

of the Form 60 and stated that:

              3. Since Defendant filed a Form 60 admitting
              the compensability of Plaintiff’s injury to
              her spine, specifically her “C2-3 Disk
              Herniation,”    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 Plaintiff’s work-related
              injury have resolved and that there is no
              need for ongoing medical treatment in this
              case   related  to    Plaintiff’s   injury   by
              accident on June 10, 2009. Therefore, the
              burden shifted back to Plaintiff to prove
              that her medical conditions are 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.

      This 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    “related    to   her

accident at work on June 10, 2009.” 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
                                     -15-
not err by concluding that plaintiff was not entitled to further

medical benefits arising from this claim.

                  V. Cessation of Indemnity Compensation

    Finally, plaintiff asserts that the Commission “erred by

allowing [defendant] to stop paying indemnity compensation to

plaintiff.” We disagree.

    N.C.   Gen.   Stat.      §    97-2(9)      defines    “disability”    as    an

“incapacity   because   of       injury   to    earn     the   wages   which   the

employee was receiving at the time of injury in the same or any

other employment.” In is well-established that:

           The 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.

Russell v. Lowe’s Product Distribution, 108 N.C. App. 762, 765-

66, 425 S.E.2d 454, 457 (1993) (citing Hilliard v. Apex Cabinet
                                    -16-
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:

           2. 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. § 97-2(9). . . .

      This conclusion is supported by the findings quoted above

in relation to the issue of plaintiff’s entitlement to further

medical   benefits,     by    the   Commission’s      findings    detailing

plaintiff’s physical abilities as depicted on the surveillance

videos, and by its findings that:

                                    . . .

           25. 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. . . .

           26. . . . 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.
                                          -17-


      Plaintiff          acknowledges     that      these     findings     support      the

Commission’s        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’s       opinion

regarding disability unless the expert “formed this diagnosis

[of a disc herniation] as a basis of their opinion.” 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 “use of the

Form 60 did not entitle plaintiff to a presumption of continuing

temporary disability[.]” Sims, 142 N.C. App. at 160, 542 S.E.2d

at    282.    The    Commission’s        ruling       on    plaintiff’s        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’s      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’s June 2009 compensable injury

had   resolved       several     years    later.      We    hold    that     the    expert
                                       -18-
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’s 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.

    For    the    reasons       discussed     above,    we     hold   that   the

Commission did not err and that its Opinion and Award should be

    AFFIRMED.

    Judges HUNTER, Robert C., and BRYANT concur.
