              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-997

                                 Filed: 17 July 2018

North Carolina Industrial Commission, I.C. Nos. 14-780510, 15-003172, and PH-4327

WARREN STIPPICH, Employee, Plaintiff,

             v.

REESE’S TRANSIT, INC., Employer, RIVERPORT INSURANCE COMPANY,
Carrier (BERKLEY ASSIGNED RISK SERVICES, Third-Party Administrator), and
RONALD EVANS, Individually, Defendants.


      Appeal by defendant from opinion and award entered 24 May 2017 by the

North Carolina Industrial Commission. Heard in the Court of Appeals 4 April 2018.


      O’Malley Tunstall, PLLC, by Joseph P. Tunstall, III, for plaintiff-appellee.

      Jordan Law Offices, P.A., by James F. Jordan and Sarah C. Blount, for
      defendant-appellees Reese’s Transit, Inc. and Ronald Evans.

      Brewer Defense Group, by Joy H. Brewer and Kenneth E. Menzel, for defendant-
      appellant Riverport Insurance Company.


      ELMORE, Judge.


      Defendant Riverport Insurance Company (“Riverport”) appeals from an

opinion and award of the North Carolina Industrial Commission (“the Commission”),

which concluded that Riverport is responsible for payment of all benefits due

employee Warren Stippich (“plaintiff”) for the injuries he sustained in a 6 October

2014 work-related automobile accident.        On appeal, Riverport contends the

Commission erred in finding and concluding (I) that plaintiff’s current neck and lower
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back conditions are related to the 2014 accident and (II) that plaintiff established

ongoing disability as a result of the 2014 accident. In the alternative, Riverport

argues (III) that liability for plaintiff’s medical treatment should be split equally

between Riverport and plaintiff’s employer, defendant-appellee Reese’s Transit, Inc.

(“Reese’s”). For the reasons stated herein, we affirm in part and reverse in part.

                                    Background

      On 6 October 2014, plaintiff was injured in an automobile accident arising out

of his employment with Reese’s, which was insured by Riverport. On 15 January

2015, plaintiff was involved in a second automobile accident arising out of his

employment with Reese’s. However, at the time of the 2015 accident, Reese’s had

allowed its workers’ compensation insurance coverage to lapse. Riverport thus denied

a claim for plaintiff’s 2015 accident on the grounds that Reese’s lacked insurance

coverage on that date, and it denied a claim for plaintiff’s 2014 accident on the

grounds that plaintiff’s injuries were related only to the 2015 accident.

      Plaintiff filed two Form 33 Requests for Hearing based on Riverport’s denial of

the two claims. Both claims were heard before Deputy Commissioner Adrian Phillips

(“DC Phillips”) on 17 November 2015, and evidence presented at the hearing tended

to show the following.

      Plaintiff was fifty-nine years old at the time of the 2014 accident and had

various pre-existing conditions involving his shoulders, knees, left upper extremity,



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and back. Plaintiff testified to having a low level of chronic back pain since as early

as 1989, but he had not received any treatment for back pain in the six months

preceding the 2014 accident, and he had no neck pain prior to October 2014. In

August 2014, plaintiff began working as a driver for Reese’s, where his employment

consisted of transporting children to and from school.

      On 6 October 2014, plaintiff was involved in a work-related accident when his

vehicle was “T-boned” by another vehicle.         Property damage was estimated at

$10,000.00 to $12,000.00, and plaintiff’s vehicle had to be towed from the scene.

Plaintiff was treated at Johnston Medical Center the same day and reported pain in

his neck, shoulders, right knee, and right hip.

      On 1 November 2014, plaintiff returned to Johnston Medical Center

complaining of pain in his neck, shoulders, lower back, and lower right extremity.

Plaintiff reported that the pain had become more severe since the day of the accident,

so much so that plaintiff could no longer work through the pain or sleep at night. No

diagnoses were made at that time as to plaintiff’s lower back, but he was diagnosed

with neck pain and right knee pain. The very next day, plaintiff presented at the

WakeMed Emergency Room and reported pain in his neck, shoulders, and lower back.

Upon examination, plaintiff was diagnosed with back pain, right foot pain, and gout.

      Plaintiff did not receive any further medical treatment from on or about 3

November 2014 through 7 January 2015. During that time, plaintiff drove for Reese’s



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on a limited basis due to his debilitating pain levels as well as the children’s winter

break from school.

      On 8 January 2015, plaintiff presented at NextCare Urgent Care and reported

having persistent neck pain since the 2014 accident. Plaintiff was diagnosed with

cervicalgia and back pain, referred to an orthopaedist, and restricted from work for

three days. Upon returning to work on 11 January 2015, plaintiff notified Reese’s

that he did not feel he could work through his pain any longer and thought he may

become a danger to himself or the children if he continued to drive in his condition.

Plaintiff agreed to temporarily continue his employment with Reese’s until the

company could locate a replacement driver.

      On 15 January 2015four days after his return to work and notice of intent to

cease drivingplaintiff was involved in a second work-related accident. Plaintiff was

sitting in his parked Chevrolet Suburban when a Lexus sedan “slid on ice and side-

swiped the driver’s side rear corner of plaintiff’s bumper.” The accident was low-

impact in nature and resulted in minimal damage to the two vehicles, including a

dent in the Suburban’s rear bumper, scratched paint, and a broken tail light, all of

which cost approximately $1,500.00 to repair. Plaintiff did not seek treatment for

any injuries on the day of the second accident, which he described as a “fender-

bender.”




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      On 16 January 2015, plaintiff presented to Paul Becton, PA-C, with Raleigh

Orthopaedic Clinic (“ROC”) pursuant to a previously-scheduled appointment to

address his ongoing pain from the 2014 accident. At that appointment, Mr. Becton

diagnosed plaintiff with neck and back pain and prescribed various medications; he

also restricted plaintiff from work for three weeks, to be followed by a three-week

period of “work as tolerated.” However, plaintiff did not return to work.

      On 16 February 2015, plaintiff presented to Dr. Mark R. Mikles, an

orthopaedic surgeon with ROC, who diagnosed plaintiff with cervical and lumbar

spondylosis as well as acute-on-chronic neck and lower back pain. As to further

treatment options, Dr. Mikles recommended plaintiff undergo a course of

conservative treatment such as medication and physical therapy. A medical note

from the February 2015 appointment indicates that Dr. Mikles restricted plaintiff

from work “at this point” and instructed plaintiff to follow up with Dr. Mikles after

he received the recommended conservative treatment.          However, plaintiff never

received that treatment, and he did not follow up with Dr. Mikles for approximately

ten months. While Reese’s continued paying plaintiff’s salary from mid-January 2015

through May 2015, plaintiff did not return to work nor seek other employment at any

time after the 2015 accident.

      In the meantime, plaintiff presented on 28 April 2015 to Dr. David Herzig, a

neurosurgeon, and on 21 September 2015 to Dr. Hsiupei Chen, a pain management



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specialist.   According to Dr. Herzig, plaintiff “basically declined” his offer for

conservative treatmentwhich would have consisted of physical therapy, pain

management, and medicationsand seemed “infatuated” with having surgery. Dr.

Chen    likewise   testified    that    plaintiff   did    not   follow   through    with   her

recommendations for treatment, which would have included a lumbar discogram of

his back as well as a steroid injection for his neck. Neither Drs. Herzig nor Chen

addressed the issue of work restrictions for plaintiff.

       At the November 2015 hearing before DC Phillips, plaintiff testified that he

was not injured by, and that his pain had never increased as a result of, the 2015

accident. According to plaintiff, prior to the 2015 accident, a lot of his pain from the

2014 accident had “shaken out,” and “all [the 2015 accident] did was wake everything

that had kind of . . . calmed down.”

       On 7 December 2015, plaintiff returned to Dr. Herzig complaining of chronic

lower back and neck pain, and he called Dr. Herzig two days later in an attempt to

schedule surgery. Dr. Herzig ultimately discharged plaintiff from his practice due to

plaintiff’s   insistence   on    having      surgery      despite   Dr.   Herzig’s    repeated

recommendations against the same. On 14 December 2015, plaintiff followed up with

Dr. Mikles for the first time since February and reported declining the conservative

treatment offered by Drs. Herzig and Chen. Like Dr. Herzig, Dr. Mikles advised




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plaintiff at his final appointment on 28 December 2015 that surgical intervention was

not warranted, and he did not address the issue of work restrictions for plaintiff.

      On 26 July 2016, DC Phillips entered an opinion and award concluding that

plaintiff sustained a compensable aggravation of his neck and lower back conditions

as a result of the 2015 accident, and that Reese’s was liable to plaintiff for temporary

total disability benefits as well as medical treatment. As to the issue of ongoing

disability, DC Phillips concluded that plaintiff had failed to establish disability

beyond 28 December 2015. Plaintiff appealed to the Full Commission.

      On 24 May 2017, the Full Commission reversed DC Phillips’ opinion and

award, concluding: (1) plaintiff’s pre-existing neck and lower back conditions were

aggravated by the 2014 accident; (2) the 2015 accident resulted in, at most, a

temporary flare-up of the conditions aggravated by the 2014 accident, and did not

result in any new injury; (3) plaintiff established ongoing disability beginning 15

January 2015; and (4) Riverport is solely liable for all benefits due plaintiff as a result

of the injuries he sustained in the 2014 accident. Commissioner Linda Cheatham

dissented on the issue of ongoing disability, instead concluding that plaintiff failed to

establish disability as of 28 December 2015 due to lack of medical or other competent

evidence documenting plaintiff’s work restrictions, as well as plaintiff’s failure to

search for work after 28 December 2015. Riverport appeals.

                                 Standard of Review



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      Our review of an opinion and award of the Commission is “limited to reviewing

whether any competent evidence supports the Commission’s findings of fact and

whether the findings of fact support the Commission’s conclusions of law.” Deese v.

Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000); N.C. Gen. Stat.

§ 97-86 (2015). “Thus, on appeal, this Court ‘does not have the right to weigh the

evidence and decide the issue on the basis of its weight. The [C]ourt’s duty goes no

further than to determine whether the record contains any evidence tending to

support the finding.’ ” Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414

(1998) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272,

274 (1965)). If the record does contain such evidence, the Commission’s findings are

conclusive on appeal, even if there is also evidence that would support contrary

findings. Id. (citing Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633

(1965)). However, the plaintiff is entitled to the benefit of every reasonable inference

in his favor. Id. (citation omitted).

                                        Discussion

      On appeal, Riverport asserts the Commission erred in finding and concluding

that plaintiff’s current neck and lower back conditions are related to the 2014

accident.   Riverport contends the evidence shows plaintiff suffered a “material

aggravation” of those conditionsrather than a “temporary flare-up” as found by the

Commissionas a result of the 2015 accident, “placing Reese’s Transit solely on the



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risk for plaintiff’s medical treatment.” Riverport also argues the Commission erred

by finding and concluding that plaintiff established ongoing disability beyond 28

December 2015. In the alternative, Riverport contends that liability for plaintiff’s

medical treatment should be split equally between Riverport and Reese’s.

I.    The Commission did not err in finding and concluding that plaintiff’s current
      conditions are attributable to the 2014 accident.

      Riverport first argues the evidence of record demonstrates plaintiff sustained

a material aggravation of his neck and back conditions as a result of the 2015 accident

rather than the 2014 accident. Riverport contends plaintiff’s own testimony shows

that his pain as a result of the 2014 accident had subsided and returned to its

“baseline pre-injury levels” prior to the 2015 accident, which then “aggravated” and

“resurrected” plaintiff’s pain. Riverport also asserts that the medical evidence shows

plaintiff’s pain never lessened or subsided after the 2015 accident, whereas plaintiff

had been able to return to work after the 2014 accident. Thus, according to Riverport,

the Commission erred in finding that plaintiff’s current conditions are attributable to

the 2014 accident.

      “Our courts have consistently held that workers injured in compensable

accidents are entitled to be compensated for all disability caused by and resulting

from the compensable injury.” Heatherly v. Montgomery Components, Inc., 71 N.C.

App. 377, 379, 323 S.E.2d 29, 30 (1984) (citations omitted). “The law in this state is

that the aggravation of an injury . . . is compensable ‘[w]hen the primary injury is


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shown to have arisen out of and in the course of employment, [and] every natural

consequence that flows from the injury arises out of the employment, unless it is the

result of an independent intervening cause attributable to claimant’s own intentional

conduct.’ ” Id. at 37980, 323 S.E.2d at 30 (quoting Roper v. J.P. Stevens & Co., 65

N.C. App. 69, 73, 308 S.E.2d 485, 488 (1983)). In other words, “ ‘[w]hen a first cause

produces a second cause that produces a result, the first cause is a cause of that

result.’ ” Id. at 380, 323 S.E.2d at 30 (quoting Petty v. Transport, Inc., 276 N.C. 417,

426, 173 S.E.2d 321, 328 (1970)).

      As to plaintiff’s testimony, Riverport specifically notes that in Finding of Fact

22, the Commission cites to plaintiff’s testimony “that the increased pain after [the

2015 accident] subsided, such that he returned to the pain levels he developed

following the [2014 accident]” in support of Finding of Fact 36. Riverport asserts that

this testimony does not exist anywhere in the record, and that the pain plaintiff

described as having “subsided” was the pain he experienced after the 2014 accident,

but before the 2015 accident. Riverport further asserts that, contrary to Finding of

Fact 22, the evidence shows plaintiff’s pain never lessened or subsided after the 2015

accident. In regard to the medical evidence, Riverport emphasizes the Commission

found that three physicians all opined that plaintiff’s pre-existing neck and back

conditions were aggravated by both the 2014 and 2015 accidents. Riverport argues




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that because the Commission explicitly found that the 2015 accident aggravated

plaintiff’s conditions, it was error to hold Riverport solely liable for plaintiff’s benefits.

       Because the totality of the evidence supports the Commission’s findings and

conclusions as to a material aggravation of plaintiff’s primary injuries, we disagree.

       Here, plaintiff’s testimony and the opinions of his treating physicians

demonstrate that after the 2014 accident, plaintiff suffered from severe and constant

pain in his neck and back, decreased mobility, difficulty sleeping, joint pain, muscle

spasms and tingling, and tenderness in his neck, lower back, and right hip, and that

all of these conditions “would still be continuing today with or without” the 2015

accident. Moreover, plaintiff had notified Reese’s prior to the 2015 accident that he

could not continue his employment due to his physical conditions. Thus, Riverport’s

arguments as to the evidence of plaintiff’s pain levels following the 2014 and 2015

accidents are not persuasive.

       Additionally, plaintiff was still in the course of his treatment for the 2014

accident when the 2015 accident occurred. The 2015 accident was low-impact in

nature and resulted in minimal damage to the two vehicles involved. Plaintiff did

not seek treatment for any injuries on the day of the 2015 accident, which he

described as a “fender-bender.” Plaintiff’s physicians also testified that in their

opinion, the 2015 accident would not have caused plaintiff the extensive pain he was

in at that time and going forward. Finally, although Riverport correctly contends



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that the aggravation of a primary injury is compensable, such compensability relates

back to the primary injury, for which Riverport is solely liable. See Heatherly, 71

N.C. App. at 379, 323 S.E.2d at 30.

      Because the Commission’s findings and conclusions that plaintiff’s current

neck and back conditions are related to the 2014 accident are supported by at least

some competent evidence in the record, we reject Riverport’s argument and affirm

this portion of the opinion and award.

II.   The Commission erred by finding and concluding that plaintiff established
      ongoing disability as a result of the 2014 accident.

      Riverport next asserts the Commission erred in finding and concluding that

plaintiff established ongoing disability as a result of the 6 October 2014

accident. Riverport contends (1) plaintiff is not disabled as a result of that accident,

and (2) plaintiff is unable to establish disability beyond 28 December 2015. Because

the record lacks medical or other competent evidence to support the finding that

plaintiff has been totally unable to work since December 2015, we agree.

      Disability is defined as “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.” N.C. Gen. Stat. § 97-2(9) (2015). In Hilliard v. Apex Cabinet Co., our

Supreme Court held 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


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             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’s incapacity to earn was caused
             by plaintiff’s injury.

305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982) (emphasis added).

      Under the three-pronged Hilliard test, the burden is on the employee to first

show he is incapable of earning the same wages he had earned before the injury. Id.

             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 pre[-]existing 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. Lowes Prod. Distrib., 108 N.C. App. 762, 76566, 425 S.E.2d 454, 457 (1993)

(citations omitted).

      Here, the Commission concluded plaintiff had established disability pursuant

to the Hilliard test and the first method set forth in Russellthat is, through 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. As to plaintiff’s

proving disability pursuant to Hilliard and Russell, the Commission found:



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22. . . . . Prior to the [2014 accident], plaintiff [testified that
he] could work through his pain; however, after that
collision, he could no longer sleep, bend over, and felt
unable to continue working due to increased pain levels.

23. Plaintiff also testified that his personal health
insurance paid for his medical treatment in January and
February 2015, but that coverage eventually ceased after
he stopped working. While receiving medical treatment
using his personal health insurance policy, plaintiff paid
co-pays out-of-pocket, but he did not have enough personal
funds to pay the co-pays required to attend physical
therapy. . . . . Plaintiff testified that he had already
received medical bills he could not pay and did not want to
incur further debt by obtaining additional treatment he
could not personally afford.        The Commission finds
plaintiff’s testimony in this regard credible, and further
finds plaintiff’s reasons for not seeking additional medical
treatment reasonable.

....

33. Dr. Herzig deferred to Dr. Mikles as to plaintiff’s
capacity for work. Although Dr. Mikles was not directly
asked about plaintiff’s capacity for work during his
deposition on February 29, 2016, Dr. Mikles testified that
he wrote plaintiff out of work following an evaluation on
February 16, 2015 and, when plaintiff returned for re-
evaluation on December 7 and December 28, 2015, plaintiff
demonstrated no significant change in his condition. Dr.
Mikles testified that plaintiff’s physical examinations were
unchanged from prior evaluations, and he continued to
recommend the conservative treatment measures
previously given at the February 16, 2015 appointment.

34. At the hearing before [DC Phillips], plaintiff testified
that his neck pain prevents him from sleeping, working in
his yard, and performing the work he used to do. Plaintiff
also testified that he is unable to work through his pain
and is in need of further medical treatment.            The


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           Commission finds plaintiff’s testimony as to his pain levels
           and its effect on his activity levels and work capacity
           credible.

           ....

           37.    The Commission further finds, based upon a
           preponderance of the evidence in view of the entire record,
           that plaintiff has been totally disabled from work in any
           capacity since his involvement in the [2015 accident]. Mr.
           Becton excused plaintiff from work as of January 16, 2015,
           and Dr. Mikles maintained this out-of-work status during
           follow-up on February 16, 2015. Dr. Mikles noted,
           “[plaintiff] was given a work note stating he is out of work
           at this point and will follow up once he has had the above
           treatments approved for further evaluation or workup if
           necessary.” . . . . At the time of plaintiff’s follow-ups with
           Dr. Mikles on December 14 and 28, 2015, plaintiff had not
           received any of the conservative pain management
           treatments that Dr. Mikles previously recommended, and
           his physical examination and conditions remained
           unchanged. Therefore, even though Dr. Mikles did not
           provide plaintiff with a new note excusing him from work
           at either the December 14 or 28, 2015 appointments, the
           Commission finds that plaintiff remained totally disabled
           from work in any capacity due to his pain levels and
           pending receipt of the conservative treatment measures
           recommended by Dr. Mikles.

           38. . . . . [Plaintiff’s] providers have recommended
           conservative pain management as the next course of care.
           Accordingly, the Commission finds that additional
           treatment for plaintiff’s cervical spine and low back
           conditions is reasonably necessary to effect a cure, provide
           relief, and lessen his period of disability.

The Commission went on to conclude

           6. . . . that plaintiff has presented medical evidence
           sufficient to establish total disability since his involvement


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             in the [2015 accident], pursuant to the first prong of
             Russell. Plaintiff received out-of-work notes from his
             medical providers on January 16, 2015 and February 16,
             2015. The latter note, provided by Dr. Mikles, excused
             plaintiff from work until he received the conservative pain
             management treatment measures that Dr. Mikles
             recommended. Plaintiff had not received those treatment
             measures at the time of his follow-ups with Dr. Mikles on
             December 14 and 28, 2015, and his physical examination
             and conditions remained unchanged. Therefore, even
             though Dr. Mikles did not provide plaintiff with a new note
             excusing him from work at either the December 14 or 28,
             2015 appointments, the Commission concludes, based upon
             the cumulative medical evidence entailed in Dr. Mikles’
             medical records and deposition testimony, that plaintiff
             remains totally disabled from work in any capacity due to
             his pain levels and pending receipt of the conservative
             treatment measures that Dr. Mikles has recommended.
             . . . . The Commission further concludes that the medical
             evidence, along with plaintiff’s credible testimony as to his
             pain level, precludes him from work in any capacity at this
             time.

      Based on these findings and conclusions regarding plaintiff’s disability, it is

apparent that the majority of the Commission interpreted Dr. Mikles’ 16 February

2015 medical note as restricting plaintiff from all work until he received the

recommended conservative treatment. However, the evidence of record does not

support such an interpretation.     Dr. Mikles’ medical note did not indicate that

plaintiff should remain out of work until he received the recommended conservative

treatment; rather, the note instructed plaintiff to follow up with Dr. Mikles’ office

once he received the recommended treatment. Moreover, Dr. Mikles did not testify




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that it was his intention for plaintiff to remain completely out of work until he

received the recommended treatment.

      In addition to Dr. Mikles, plaintiff presented to Drs. Herzig and Chen later in

2015. Dr. Herzig testified that plaintiff declined his offer for conservative treatment

and seemed “infatuated” with having surgery.              Dr. Chen likewise testified that

plaintiff did not follow through with her recommendations for treatment. Neither Dr.

Herzig nor Dr. Chen wrote out-of-work notes for plaintiff at any time, nor did either

doctor recommend any specific work restrictions for plaintiff.

      Plaintiff   did   not    follow   up    with        Dr.   Mikles   until   December

2015approximately ten months after his previous appointment. During this visit,

plaintiff informed Dr. Mikles that he had declined conservative treatment offered by

Drs. Herzig and Chen. Dr. Mikles, like Dr. Herzig, advised plaintiff that surgical

intervention was not warranted. At his final appointment on 28 December 2015, Dr.

Mikles recommended that plaintiff follow up with a pain management clinic or Dr.

Herzig, but he did not address the issue of work restrictions for plaintiff.

      In view of the entire record, as of 28 December 2015, none of plaintiff’s treating

physicians had ever instructed plaintiff to remain out of work indefinitely “pending

receipt of conservative treatment measures.” Moreover, any lack of conservative

treatment at that point did not preclude plaintiff from at least searching for work,

but there is no evidence in the record that plaintiff searched for workor that a



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search would have been futile due to pre-existing conditionsfollowing his 28

December 2015 appointment with Dr. Mikles. Absent such a showing, plaintiff has

failed to establish total disability pursuant to Hilliard and Russell.

       Because the record is wholly devoid of medical or other competent evidence to

support the finding that plaintiff has been totally unable to work since 28 December

2015, and because plaintiff has failed to meet his burden of showing he is incapable

of earning wages, we hold that the Commission erred in concluding plaintiff

established ongoing disability and in extending plaintiff’s benefits beyond that date.

III.   Riverport is solely liable for plaintiff’s medical treatment as a result of the 2014
       accident.

       Riverport argues in the alternative that “[b]ecause there is no specific

testimony on the percentage of plaintiff’s neck and back conditions caused by the

October 2014 accident versus the January 2015 accident, apportionment is not

appropriate and liability should be split equally” between Riverport and Reese’s,

“resulting in joint and several liability for plaintiff’s medical treatment.” Riverport

relies on this Court’s decision in Newcomb v. Greensboro Pipe Co., 196 N.C. App. 675,

677 S.E.2d 167 (2009), to support its argument.

       In Newcomb, the plaintiff suffered a work-related back injury arising out of his

employment with the defendant-appellant; he was diagnosed with a disc herniation

and underwent a microdiscectomy. Id. at 676, 677 S.E.2d at 167. The plaintiff




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subsequently began working for a new employer, but he continued to receive

treatment for his prior back injury. Id.

      Three years later, the plaintiff sustained a second work-related injury when he

slipped and fell while in the course of his new employment.          Id.   The plaintiff

complained of increased pain, underwent another microdiscectomy, and was assigned

work restrictions of no prolonged sitting or standing, no unsupported or repetitive

bending, and no lifting over 10 pounds, which were nearly identical to the restrictions

he had been assigned after the first accident. Id. at 677, 677 S.E.2d at 168.

      The plaintiff’s treating physician in Newcomb testified that the second accident

had aggravated the plaintiff’s underlying back condition and precipitated the need

for repeat surgery, but he could not apportion a percentage of the plaintiff’s condition

between the two accidents. Id. As a result, the Commission determined that the

plaintiff was unable to work due to his vocational background as well as the

restrictions he had been assigned, and it concluded that the two employers were

jointly and severally liable for payment of the plaintiff’s benefits. Id. at 678, 677

S.E.2d 16869. We affirmed. Id. at 682, 677 S.E.2d 171.

      The facts of the instant case are readily distinguishable from those in

Newcomb, where the second accident undoubtedly resulted in new injury, pain, and

need for medical treatment. Here, the evidence shows that plaintiff’s second accident

was a “fender-bender” that did not result in any new injury, did not cause any new



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                                  Opinion of the Court



pain that had not already been caused by the first accident, and did not require new

medical treatment. Thus, because the evidence supports the Commission’s finding

and conclusion that the 2015 accident resulted in a mere “flare-up” of the conditions

caused by the 2014 accident, we hold that the Commission did not err in declining to

split liability for plaintiff’s medical treatment between Riverport and Reese’s.

                                     Conclusion

      Because there is competent evidence to support the Commission’s finding and

conclusion that plaintiff’s current neck and back conditions are attributable to the

2014 compensable injury by automobile accident, we affirm this portion of the

Commission’s opinion and award.          However, the Commission’s findings are

insufficient to support its conclusion that plaintiff established disability after 28

December 2015. Accordingly, we reverse that portion of the Commission’s opinion

and award concluding plaintiff established ongoing disability and extending

plaintiff’s workers’ compensation benefits beyond 28 December 2015. Lastly, we

affirm the Commission’s conclusion that Riverport is solely liable for plaintiff’s

medical treatment as a result of the 2014 accident.

      AFFIRMED IN PART; REVERSED IN PART.

      Judges TYSON and ZACHARY concur.




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