An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-312
                       NORTH CAROLINA COURT OF APPEALS

                            Filed: 16 September 2014


DAVID J. SPAIN,
          Employee,
          Plaintiff,

      v.                                         North Carolina
                                                 Industrial Commission
DAVID J. SPAIN d/b/a SPAIN'S                     I.C. No. W28283
MOBILE HOME MOVERS,
          Employer,
COMPANION PROPERTY & CASUALTY
GROUP,
          Carrier,
          Defendants.


      Appeal by plaintiff and defendants from opinion and award

entered    28    October     2013     by   the    North    Carolina    Industrial

Commission.     Heard in the Court of Appeals 28 August 2014.


      Mast, Mast, Johnson, Wells & Trimyer P.A., by Charles D.
      Mast, for plaintiff.

      Hedrick, Gardner, Kincheloe & Garofalo, LLP, by M. Duane
      Jones, Matthew J. Carrier, and Tracie H. Brisson, for
      defendants.


      GEER, Judge.


      Both plaintiff David J. Spain and defendants David J. Spain

d/b/a    Spain's    Mobile     Home    Movers      and    Companion   Property     &
                                                  -2-
Casualty        Group    appeal        from       an     opinion     and     award      of     the

Industrial       Commission          terminating         plaintiff's       temporary         total

disability benefits for his right arm injury by accident, but

ordering defendants to authorize and pay for further medical

treatment of plaintiff's right arm injury.

      On appeal, plaintiff primarily argues that the Commission

misapplied the test set forth in Lanning v. Fieldcrest-Cannon,

Inc.,     352     N.C.    98,        107,     530       S.E.2d     54,     61     (2000),      for

determining        whether       a     claimant's          ownership       of     a     business

supports a finding that he has earning capacity such that he is

not   totally      disabled.           However,          because     there      is     competent

evidence to support the Commission's findings that plaintiff has

demonstrated        wage         earning          capacity        through         his     active

involvement and the skills he obtained in the running of an auto

repair     shop     and     those           findings       support       the      Commission's

conclusion that plaintiff was no longer totally disabled, we

affirm the termination of benefits.

      Defendants         argue       that    the        Commission    erred       in    awarding

further medical treatment for plaintiff's right arm complaints

and, specifically, for ordering defendants to authorize and pay

for plaintiff to undergo a psychiatric evaluation.                                We hold that

the   Commission         properly       applied          the   presumption        set    out   in

Parsons    v.     Pantry,    Inc.,          126    N.C.    App.    540,     485      S.E.2d    867
                                          -3-
(1997),     and     found   that       plaintiff's       current    complaints        are

related to plaintiff's original compensable injury,                            requiring

defendants to pay for additional treatment of plaintiff's right

arm   symptoms,      including     a    psychiatric         evaluation    related      to

plaintiff's right arm paralysis.

                                          Facts

      At the time of the hearing before the deputy commissioner,

plaintiff    was     30   years    old.         Plaintiff    dropped     out    of   high

school in the tenth grade and later completed his GED.                         Prior to

working for defendant-employer, plaintiff had worked as a truck

driver, mobile home maintenance worker, and tree remover.                              In

2006, plaintiff was employed by his father, defendant-employer

David J. Spain d/b/a Spain's Mobile Home Movers, who was in the

business     of      transporting         and     setting      up   mobile        homes.

Plaintiff's work was very physical in that it involved, among

other things, crawling under trailers and lifting up to about

200 pounds.

      On 21 November 2006, plaintiff was using an auger machine

to drill an anchor into the ground. While holding on to the

auger     machine    with    his       right     hand,    plaintiff      accidentally

drilled into an underground power line and sustained an electric

shock injury.        Plaintiff was taken to the emergency department

of Beaufort County Hospital where he complained of right upper
                                      -4-
extremity    numbness.      On   28   November      2006,   defendant-employer

filed a Form 19 reporting plaintiff's injury.

    Following the injury, plaintiff consistently reported to

medical providers that he was unable to move his right upper

extremity and was numb below his right elbow.                   Plaintiff came

under the care of Dr. J. Gregg Hardy, a neurologist, whom he

initially saw in the emergency room at Pitt County Memorial

Hospital    on   27   November   2006.      After    seeing    plaintiff   on   6

February 2007, Dr. Hardy noted that although proximal muscles of

plaintiff's right arm had recovered, plaintiff still reported

being unable to move his right hand.                Dr. Hardy believed that

"there is a probable psychiatric component to this" and ordered

a Minnesota Multiphasic Personality Inventory ("MMPI") test for

plaintiff.

    On 21 March 2007, Dr. Hardy noted that plaintiff was able

to move his right wrist, but reported that he was unable to curl

or straighten the fingers of his right hand.                  The MMPI results

suggested to Dr. Hardy that plaintiff may have a somatoform

disorder, which is a psychological condition.                 A patient with a

somatoform disorder unconsciously focuses on physical symptoms

and perceives them as more significant than they actually are.

Plaintiff underwent a cervical MRI on 28 March 2007 that showed

minimal cervical spondylosis with right eccentric disc bulge at
                                             -5-
C5-6 and mild multilevel uncovertebral joint spurring and no

evidence of neural impingement or cord deformity.

      On   8   May    2007,        plaintiff       saw   Dr.    Robert       C.    Frere,   a

neurologist, who noted that there was no objective evidence of a

lower neuron injury that would account for plaintiff's right

hand paralysis.          Dr. Frere ordered a brain MRI which showed no

acute intracranial abnormality.                    Dr. Frere referred plaintiff

for   physical     and      occupational       therapy,        but    plaintiff,       after

undergoing therapy, reported on 8 November 2007 no change in his

distal right arm weakness.              Dr. Frere believed that plaintiff's

persistent     right       upper    extremity       condition        was    related    to   a

somatoform disorder and that the original electrical injury more

likely     than      not    contributed         to       plaintiff's        psychological

condition.

      On 8 February 2008, plaintiff presented to Dr. Stuart Busby

at the UNC Neurology Clinic, complaining about his right arm and

about severe headaches that he had three to four times a week

beginning after his injury.               On 4 April 2008, Dr. Busby noted

that the headaches and paralysis of plaintiff's right arm were

probably related to his injury, but concluded that plaintiff had

no determinable neurological impairment.

      On   9      March     2009,      plaintiff         saw    Dr.        Ann    Nunez,    a

physiatrist,       who     performed     a     functional       capacity          evaluation
                                        -6-
("FCE") of plaintiff.            Dr. Nunez concluded that plaintiff could

work at a sedentary capacity and exert up to 10 pounds of force

occasionally.           On 16 March 2009, Dr. Nunez recommended that

plaintiff return to work.              She also noted that none of the

medical providers had made any physiological findings that could

explain plaintiff's continuing inability to move his right upper

extremity and recommended a psychiatric evaluation.

      On   22    June    2009,    defendants    filed      a   Form       60   admitting

compensability for plaintiff's injury to his right arm.                              The

form stated that disability resulting from the injury began on

22 November 2006 and that compensation commenced on 29 November

2006.

      In February 2010 defendants began providing plaintiff with

vocational rehabilitation from Richard Cowan.                         In July 2010,

plaintiff took an online insurance course but did not pass the

exam.      In    June    2011,    plaintiff    enrolled        in    an   EKG   Monitor

Technician course, which he successfully completed, but then did

not obtain a job in that field.

      In   January       2011,   plaintiff     and   his   wife      opened     Wharton

Station Tire and Auto Care, a business providing auto and truck

servicing.        Plaintiff obtained an inspection mechanic license

and   on   4    March    2011,   the   North   Carolina        DMV   issued     Wharton

Station an "Official Inspection Station Certificate."                          Plaintiff
                                          -7-
and his wife reported that Wharton Station had a net profit of

$22,131.00     for   2011    which      constituted      the   entirety    of   their

reported income for that year.               On 23 May 2011 and 8 December

2011, plaintiff executed Form 90s that stated: "I do not know

what your definition of work is, but I do hang around Wharton

Station Tire & Auto Care during the day and may occasionally try

to do something helpful."

      On 22 December 2011, defendants filed a Form 24 application

to terminate or suspend payment of compensation pursuant to N.C.

Gen. Stat. § 97-18.1.               The form stated that "[p]laintiff made

false and/or misleading statements on an executed and signed

Form 90.     Plaintiff is not disabled from suitable employment as

a result of his accident on November 21, 2006."                           Defendants

filed a Form 33 Request for Hearing dated 28 December 2011.                         On

8 February 2012 Special Deputy Commissioner Jennifer S. Boyer

entered an administrative decision and order stating that she

was   unable   to    reach      a    decision     on   the   Form   24   Application

following an informal hearing.

      Following      a   full       evidentiary    hearing     on   26   July   2012,

Deputy   Commissioner        Robert     J.   Harris     entered     an   opinion   and

award on 7 March 2013.               The deputy commissioner concluded that

because plaintiff is actively involved in the daily operation of

Wharton Station and has shown that he has wage-earning capacity
                                        -8-
in   the    competitive   market,       plaintiff     was   no    longer     totally

disabled and defendants were entitled to terminate payment of

temporary      total   disability       compensation.            To    the   extent

plaintiff could show that he remained partially disabled, the

deputy commissioner found that plaintiff was no longer entitled

to partial disability compensation because the 300-week period

from the date of plaintiff's injury had passed.                         The deputy

commissioner further concluded that defendants failed to rebut

the presumption that further medical treatment for plaintiff's

right    upper   extremity   condition        was   directly     related     to   his

original compensable injury, and ordered defendants to authorize

and pay for future medical treatment, including a psychiatric

evaluation of plaintiff.            Both parties appealed             to the Full

Commission.

      On 26 August 2013, plaintiff filed a Notice of Change of

Condition     and   Motion   to    Reinstate        Compensation,      or    In   the

Alternative,     Motion   for     New   Evidence,     asserting       that   Wharton

Station closed on 30 March 2013 because it was operating at a

loss.      The Commission entered an opinion and award on 28 October

2013 in which it denied plaintiff's motion and affirmed                           the

deputy     commissioner's    opinion      and   award.         With    respect     to

plaintiff's 26 August 2013 motion, the Commission specified that

"[a]ny further issues in this claim related to any period after
                                                     -9-
11    December       2012[,      the     date        the    record       was     closed,]      may    be

raised    by    either       side        through       the       filing    of     a   new     Form    33

Request       That       Claim   be      Assigned          For    Hearing."           Both     parties

timely appealed to this Court.

                                              Discussion

       "The     scope       of      this        Court's          review     of     an    Industrial

Commission          decision        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.'"                 Wooten v. Newcon Transp., Inc., 178 N.C.

App. 698, 701, 632 S.E.2d 525, 528 (2006) (quoting Deese v.

Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553

(2000)).            Findings        of        fact     made       by     the     Commission         "are

conclusive          on     appeal        if     supported          by     competent          evidence,

notwithstanding evidence that might support a contrary finding."

Hobbs v. Clean Control Corp., 154 N.C. App. 433, 435, 571 S.E.2d

860,    862    (2002).           "The         Commission's         conclusions          of    law    are

subject to de novo review."                     Id.

                                      Plaintiff's Appeal

       Plaintiff argues that the Commission erred in determining

that he is no longer totally disabled and that defendants are

entitled       to    terminate         payment         of     temporary         total    disability

compensation.            "Disability" is defined as "incapacity because of
                                    -10-
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) (2013).        "When an employee suffers a 'diminution

of the power or capacity to earn,' . . . he or she is entitled

to   benefits    under   N.C.G.S.   §   97-30"   for   partial    disability.

Gupton v. Builders Transp., 320 N.C. 38, 42, 357 S.E.2d 674, 678

(1987) (quoting Branham v. Panel Co., 223 N.C. 233, 237, 25

S.E.2d 865, 868 (1943)).        However, "[w]hen the power or capacity

to   earn   is   totally    obliterated,   he    or    she   is   entitled   to

benefits under N.C.G.S. § 97-29" for total disability.              Id.

      With respect to partial disability benefits, plaintiff is

subject to the provisions of N.C. Gen. Stat. § 97-30 (2009),

which limits the total amount of partial disability compensation

to 300 weeks from the date of injury.            Because in this case, the

300-week period from the date of injury has passed, plaintiff is

no longer entitled to partial disability benefits under N.C.

Gen. Stat. § 97-30.        Therefore, the issue in this case is solely

whether plaintiff's earning capacity was "totally obliterated"

such that he remains totally disabled.            Gupton, 320 N.C. at 42,

357 S.E.2d at 678.

      Here, the Commission based its denial of total disability

benefits on its application of the test set forth by our Supreme

Court in Lanning.        The Lanning test is used to determine whether
                                        -11-
a   claimant's   ownership    of    a    business    supports     a    finding   of

earning capacity:

            [T]he test for determining whether the self-
            employed injured employee has wage-earning
            capacity is that the employee (i) be
            actively   involved    in   the   day   to  day
            operation of the business and (ii) utilize
            skills which would enable the employee to be
            employable in the competitive market place
            notwithstanding    the    employee's   physical
            limitations, age, education and experience.
            In the instant case, given plaintiff's
            exertional    limitations,     education,   and
            experience, would he be hired to work in the
            competitive market place?

352 N.C. at 107, 530 S.E.2d at 61.                Whether the two prongs of

this test are met "are questions of fact."                    Id. at 108, 530

S.E.2d at 61.    In this case, the Commission determined that both

the requirements of the Lanning test were met.

      With respect to the first prong, the Commission found that

Wharton Station's website states that it "is run by" plaintiff

and his wife.    Several of the Commission's findings suggest that

plaintiff was physically present at Wharton Station on a regular

basis.      Specifically,     the       Commission    found     that    defendants

conducted 48 hours of surveillance on plaintiff in July, October

and   November    of   2011,       in     which     plaintiff     was    observed

interacting with people and driving vehicles around the property

of Wharton Station; that on 23 May 2011 and 8 December 2011,

plaintiff   executed   Form    90s      stating   that   he     "hang[s]   around
                                    -12-
Wharton   Station    Tire    &   Auto    Care   during    the    day   and   may

occasionally try to do something helpful"; and that plaintiff's

wife   testified    that     plaintiff    "provides      her    with   husbandly

support, and    she likes having him there at Wharton Station,

especially after dark."

       With respect to the business operations at Wharton Station,

the Commission found:

                53. Wharton Station has hired auto
           mechanics, who perform the actual physical
           mechanic's work for the business.

                54. On 4 March 2011, NC DMV issued
           Wharton Station an "Official Inspection
           Station    Certificate",    with   plaintiff
           designated as the licensed inspector working
           at the location.    In order to obtain this
           license, plaintiff took and passed a class
           to be an inspection mechanic.

                   . . . .

                63. As plaintiff testified, he has
           handled tire orders for Wharton Station. He
           has also logged in the codes for North
           Carolina vehicle inspections, although the
           mechanic     performs    the     inspections
           themselves. He has also met with customers.

                   . . . .

                65. As of the hearing before the
           Deputy Commissioner, plaintiff and his wife
           had not paid any wages or salaries to
           themselves from Wharton Station, but they
           had used the Wharton Station bank account
           for their personal expenses, including, but
           not limited to, mortgage payments on their
           residence.
                                                -13-
                    66. Although       North     Carolina
              inspections account for only a very small
              percentage of the revenues for Wharton
              Station, the sign in front of the business
              prominently lists "N.C. Inspection" as a
              draw.     As   plaintiff's  wife testified,
              although the inspections themselves do not
              bring in much revenue, she wanted to offer
              them.

       Plaintiff argues that because he did not physically work on

the motor vehicles, and there is no evidence that he instructed

the    mechanics       on       what    to     do,    the    facts   of    this    case     are

analogous to the facts in Hunter v. Apac/Barrus Constr. Co., 188

N.C.     App.       723,    656        S.E.2d     652    (2008).          In    Hunter,     the

plaintiff's son took over the physical labor involved in the

daily    operation         of    the     family      farm    after   the       plaintiff    was

injured.        Id. at 730, 656 S.E.2d at 656.                   This Court upheld the

Commission's finding that the plaintiff was not involved in the

day-to-day operations of the farm, noting that although evidence

in     the    record       showed       that     the     plaintiff    co-signed       loans,

purchased        equipment,            and      signed      grower    agreements,          "the

Commission       was       entitled      to     credit      plaintiff's        evidence    that

plaintiff signed the documents only because of [his son's] age

and    lack     of   credit       history       and     that   the   documents       did   not

reflect actual involvement in the day-to-day operations of the

farm."        Id.      This Court emphasized that "'[i]n weighing the

evidence, the Commission is the sole judge of the credibility of
                                             -14-
the witnesses and the weight to be given to their testimony, and

may   reject     a   witness'          testimony      entirely      if   warranted      by

disbelief of that witness.'"                   Id. at 731, 656 S.E.2d at 657

(quoting Lineback v. Wake Cnty. Bd. of Comm'rs, 126 N.C. App.

678, 680, 486 S.E.2d 252, 254 (1997)).

      Similarly, here, the Commission was entitled to weigh the

credibility of plaintiff's testimony that he was only minimally

involved    in   the       operation      of    Wharton     Station      and      determine

whether his duties reflected actual involvement in the daily

operations of the business.               In this case, the Commission chose

to place more weight on the representations plaintiff made on

his   website    that      he    and    his    wife   ran    Wharton      Station,      the

evidence     that    plaintiff         was     physically     present        at     Wharton

Station, and the tasks plaintiff himself admitted to performing

for the business than to plaintiff's assertion that he merely

"hangs out" at Wharton Station or his wife's assertion that he

merely     provides        "husbandly         support."       We      hold     that    the

Commission's finding that plaintiff was involved in the day-to-

day   operations      of    Wharton      Station      is   supported      by      competent

evidence and, therefore, is binding on appeal.

      With respect to the second Lanning prong, the uncontested

findings above establish that plaintiff is licensed to be an

inspection     mechanic         and   gained    experience     at     Wharton       Station
                                            -15-
meeting with customers, handling tire orders, and logging in

codes    for    vehicle       inspections.          The      Commission        additionally

found    that     plaintiff        "has    the     knowledge        to    work    on     motor

vehicles"       and    "has    good   knowledge        about        tires."            Although

plaintiff points to evidence in the record that plaintiff "comes

and goes as he feels" and that his presence at Wharton Station

was     primarily       "a    marriage      support       thing"     as       showing       that

plaintiff did not utilize any skills at Wharton Station, this

argument       merely    amounts      to     a    request     that       we    reweigh       the

evidence, which this Court cannot do.

      Because      the       Commission's        findings     regarding          the    skills

plaintiff utilized at Wharton Station are supported by competent

evidence, they are binding on appeal.                     These findings, in turn,

support     the       Commission's         conclusion        that    the       "management,

customer       service       and   other    skills      he    has        utilized      in    the

operation of that business, when considered in conjunction with

his young age, his educational level, and his work experience

(particularly in working with and around motor vehicles), show

that he has wage earning capacity in the competitive market,

even in light of his ongoing compensable condition in his non-

dominant right upper extremity."

      Plaintiff next argues, citing Devlin v. Apple Gold, Inc.,

153 N.C. App. 442, 570 S.E.2d 257 (2002), that even if there is
                                          -16-
evidence    to       support     both    prongs    of   the     Lanning      test,   the

Commission       has    not     made     sufficient     findings       to    determine

plaintiff's      actual        wage-earning       capacity     in   the     competitive

market.     In Devlin, the Commission concluded that the plaintiff

failed to meet his burden of showing a continuing disability

based upon its findings that the plaintiff had wage earning

capacity from his gutter cleaning business.                         Id. at 446, 570

S.E.2d at 261.          This Court reversed and remanded for further

findings of fact because the Commission failed to make findings

regarding the second prong of the Lanning test and failed to

make findings to determine the plaintiff's actual wage-earning

capacity.    Id. at 448, 570 S.E.2d at 262.

    Here, in contrast to Devlin, the Commission made sufficient

findings regarding the second Lanning prong.                        Further, because

plaintiff is no longer entitled to partial disability benefits

under N.C. Gen. Stat. § 97-30, it is not necessary for the

Commission       to      determine        plaintiff's         actual      wage-earning

capacity.        A     finding    that    plaintiff      has    any    wage    earning

capacity is sufficient to preclude plaintiff from compensation

under N.C. Gen. Stat. § 97-29, which is only available "[i]f

wage-earning power is totally obliterated[.]"                       Devlin, 153 N.C.

App. at 447, 570 S.E.2d at 261.                    Because, in this case, the

Commission found that plaintiff retained wage earning capacity,
                                        -17-
we hold that the Commission did not err in denying plaintiff

total disability benefits.

      Finally,      plaintiff      argues   that      the    Commission    erred    in

denying     his    Notice     of   Change      of    Condition    and     Motion    to

Reinstate Compensation, or In the Alternative, Motion for New

Evidence.     On appeal from a ruling of the deputy commissioner,

the   Full    Commission         may   reconsider       evidence,       receive    new

evidence, and rehear the parties or their representatives if

they have good ground to do so.                     N.C. Gen. Stat. § 97-85(a)

(2013).       Whether       good   ground   exists      to    receive     additional

evidence     is    within    the   sound    discretion       of   the    Commission.

Lynch v. M. B. Kahn Constr. Co., 41 N.C. App. 127, 131, 254

S.E.2d 236, 238 (1979).            Accordingly, we review the Commission's

denial of plaintiff's motion for abuse of discretion.

      In support of his motion, plaintiff argued that the closing

of Wharton Station on 30 March 2013 amounted to a change in

condition         that      impacted     plaintiff's          earning      capacity.

Plaintiff, however, did not file his motion until 26 August 2013

-- after both parties had submitted their briefs and made oral

arguments     to    the   Full     Commission.         Although    the    Commission

denied plaintiff's motion, it nevertheless ordered that "[a]ny

further issues in this claim related to any period after 11

December 2012 may be raised by either side through the filing of
                                                -18-
a   new    Form    33    Request         That    Claim     Be   Assigned     For      Hearing."

Thus, plaintiff is not precluded from seeking further relief.

       Given the timing of the motion and the fact that in order

to adequately address the issues raised by plaintiff's motion,

both      parties       will    need      to      submit    additional       evidence         and

arguments,        it    was    reasonable         for    the    Commission       to    wait    to

address this issue on a record that is more fully developed.

We,    therefore,        hold     that      the       Commission    did    not     abuse      its

discretion in denying plaintiff's motion.

                                     Defendant's Appeal

       Defendants        argue       that       the   Commission     erred    in       awarding

medical     treatment          for    plaintiff's        right     arm    complaints       and,

specifically, for ordering defendants to authorize and pay for

plaintiff to undergo a psychiatric evaluation.                           We disagree.

       N.C.   Gen.       Stat.       §    97-25       (2013)    requires     employers         to

authorize and pay for medical treatment that is directly related

to the claimant's compensable injury.                       Parsons, 126 N.C. App. at

541-42, 485 S.E.2d at 869.                       Although the plaintiff bears the

initial burden of showing that an injury is compensable, once a

plaintiff's injury has been proven to be compensable, there is a

presumption         that       additional         medical       treatment     is      directly

related to the compensable injury, and the burden                                  shifts to

defendants "to prove the original finding of compensable injury
                                            -19-
is unrelated to [the claimant's] present discomfort."                          Id. at

542, 485 S.E.2d at 869.

       "This      presumption,             sometimes      called        the    Parsons

presumption, helps to ensure that an employee is not required to

reprove causation each time he seeks treatment for an injury

already        determined          to      be      compensable."          Taylor   v.

Bridgestone/Firestone, 157 N.C. App. 453, 458, 579 S.E.2d 413,

416,     reversed        on        other        grounds   sub    nom.     Taylor    v.

Bridgestone/Firestone, 357 N.C. 565, 598 S.E.2d 379 (2003).                        In

Perez v. Am. Airlines/AMR Corp., 174 N.C. App. 128, 136, 620

S.E.2d    288,     293    (2005),         this    Court   held   that    the   Parsons

presumption applies when, as in this case, an employer has filed

a Form 60 admitting compensability of the injury.

       With     respect       to    the    additional     medical   treatment      for

plaintiff's injury, the Commission concluded:

                     1.   As defendants accepted plaintiff's
               "electrical shock and injury to right arm"
               as compensable on a Form 60, plaintiff is
               entitled to a rebuttable presumption that
               further medical treatment for his right
               upper    extremity    condition   is    directly
               related to his original compensable injury.
               While the medical providers have arrived at
               the conclusion that a physiological basis
               for    plaintiff's   continuing    right   upper
               extremity paralysis and numbness cannot be
               identified     through    currently    available
               diagnostic testing, they are unable to say
               what is causing the continuing condition,
               other than a psychiatric condition.        As to
               whether a possible psychiatric condition is
                                   -20-
           causally related to the compensable injury,
           the evidence as a whole does not establish
           that it is not related.      Therefore, based
           upon the preponderance of the evidence in
           view of the entire record, defendants have
           not rebutted the presumption, and plaintiff
           is   thus   entitled    to   further   medical
           compensation for his compensable right arm
           injury.   Perez v. Am. Airlines/AMR Corp.,
           174 N.C. App. 128, 620 S.E.2d 288 (2005);
           Parsons v. Pantry, Inc., 126 N.C. App. 540,
           485 S.E.2d 867 (1997).     It is notable that
           defendants did not file their Form 60 until
           well after they had ample medical evidence
           at their disposal that the providers could
           not identify any physiological cause for
           plaintiff's continuing right upper extremity
           paralysis and numbness.

    Defendants argue that the Commission applied an incorrect

legal standard in reaching its conclusion that defendants failed

to rebut the Parsons presumption.           Defendants, citing Rule 301

of the Rules of Evidence, assert that the presumption places on

defendants only a burden of production of "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, and

does not shift the ultimate burden of proof of causation to

defendants.    Defendants argue that because they presented "ample

medical   evidence"    that   plaintiff's    current   symptoms   are   not

related   to   his   original   compensable    injury,   they   met   their

burden of production and rebutted the presumption.

    We first note that defendants rely solely on the Rules of

Evidence in arguing that the presumption only creates a burden
                                     -21-
of production and does not shift the burden of proof.                  However,

this Court has recognized that "[i]n workers' compensation cases

. . . the Rules of Evidence do not apply, and the Commission is

empowered to make its own rules . . . ."               Fennell v. N.C. Dep't

of Crime Control & Pub. Safety, 145 N.C. App. 584, 594, 551

S.E.2d 486, 493 (2001).

    This Court in Parsons specifically held that the Commission

erred "by placing the burden on plaintiff to prove causation"

because "[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 compensable accident

is unjust and violates our duty to interpret the Act in favor of

injured employees."       126 N.C. App. at 542, 485 S.E.2d at 869.

See also Gross v. Gene Bennett Co., 209 N.C. App. 349, 351, 703

S.E.2d   915,    917    (2011)     (holding     when    Parsons   presumption

applies, "the burden of proof is shifted from the plaintiff to

the defendant").        It is not until the defendant "rebuts the

Parsons presumption [that] the burden of proof shifts back to

the plaintiff."        Miller v. Mission Hosp., Inc., ___ N.C. App.

___, ___, 760 S.E.2d 31, 35 (2014).

    Furthermore,        although    "[t]he      employer    may   rebut      the

presumption     with   evidence    that   the   medical    treatment    is   not

directly related to the compensable injury[,]" Perez, 174 N.C.
                                        -22-
App. at 135, 620 S.E.2d at 292, presenting such evidence does

not automatically rebut the presumption.                   In McLeod v. Wal-Mart

Stores,   Inc.,    208   N.C.    App.     555,      560,   703   S.E.2d    471,   475

(2010), this Court upheld the Commission's conclusion that the

defendants failed to rebut the presumption that the plaintiff's

back pain was directly related to his compensable back injury

despite the defendants having presented expert medical testimony

that the plaintiff's back strain from his original injury had

resolved and his current pain resulted from other pre-existing

conditions that the plaintiff had prior to his injury.

    This Court explained:

           Even assuming arguendo that [the doctor's]
           testimony regarding plaintiff's preexisting
           condition, if found to be credible and given
           sufficient weight, was enough to rebut the
           Parsons presumption, [t]he [F]ull Commission
           is the sole judge of the weight and
           credibility of the evidence.   This Court is
           not at liberty to reweigh the evidence and
           to set aside the findings simply because
           other conclusions might have been reached.

Id. at 560, 703 S.E.2d at 475 (internal citation and quotation

marks   omitted).        Thus,    even     where      defendants    present       some

medical   evidence       to     support     their      position,     it     is    the

Commission's duty, not ours, to weigh the evidence and determine

whether   the     evidence    presented        is    sufficient    to     rebut   the

presumption and shift the burden back to the plaintiff.
                                               -23-
       In any event, the medical evidence defendants point to as

tending to rebut the presumption in this case amounts to an

attempt     by    defendants        to     relitigate        the        compensability     of

plaintiff's original injury.                   The Commission's findings tend to

show   that      the    experts     could       not   identify          any    physiological

explanation       for    plaintiff's       right      arm    paralysis         and   numbness

following his electric shock injury.                         Several of the experts

did, however, identify a potential psychological etiology for

plaintiff's arm condition and recommended that plaintiff undergo

a psychiatric evaluation.

       Although defendants point to the inability to identify a

physiological          explanation       for     plaintiff's            arm    condition   as

evidence that his condition was not caused by the 2006 shock

injury, defendants ignore the fact that they were well aware of

the lack of a physiological explanation for plaintiff's symptoms

and the possible psychological explanation by June 2009 when

they filed the Form 60 admitting compensability for plaintiff's

symptoms.        Thus, the Form 60 determined that plaintiff's right

arm paralysis was directly related to the 2006 injury regardless

whether   the      etiology    of        the    paralysis         was    psychological     or

neurological.            It   was    unnecessary            for     the       Commission   to

determine "whether a possible psychiatric condition is causally

related     to     the     compensable           injury"     because          by     admitting
                                       -24-
compensability for plaintiff's arm condition knowing that it was

possibly     caused     by    a     psychological    condition,    defendants

implicitly    admitted       that    any    psychiatric   condition   causing

plaintiff's symptoms was also causally related to plaintiff's

injury.

    Defendants repeat the same contentions in arguing that the

Commission erred in ordering defendants to provide a psychiatric

evaluation because "there has been no prior decision as to the

existence     or      compensability        of   a    mental     condition[.]"

Defendants reason that because the Parsons presumption is narrow

and limited to the "very injury" previously determined to be

compensable, Parsons, 126 N.C. App. at 542, 485 S.E.2d at 869,

the presumption does not apply with respect to a psychiatric

evaluation, and plaintiff bears the burden of showing "by the

preponderance of the evidence that he suffers from such a mental

condition that resulted directly and proximately from the 2006

electrical shock injury."

    However,       as   explained      in   Perez,   "[t]he    presumption   of

compensability applies to future symptoms allegedly related to

the original compensable injury."             174 N.C. App. at 137 n.1, 620

S.E.2d at 293 n.1 (emphasis added).              Defendants have not cited

any authority that the presumption does not apply if the cause

of a symptom, already determined to be directly related to a
                                           -25-
compensable injury, is psychological rather than physiological.

Plaintiff's symptoms -- paralysis and numbness of his right arm

-- have not materially changed since defendants filed their Form

60.     Here, the Commission ordered a psychiatric evaluation as

medical treatment addressing plaintiff's arm paralysis, not as

treatment for a separate mental condition.

      This    result     is    not    inconsistent         with    Clark      v.    Sanger

Clinic, P.A., 175 N.C. App. 76, 623 S.E.2d 293 (2005), cited by

defendants.       There,        the    plaintiff         suffered      an     admittedly

compensable     injury    to    her    back,       and    the     Commission       ordered

defendants to provide all medical treatment arising from her

injury,   "including      subsequent         falls       resulting     from    her       back

injury causing dental problems and a knee injury."                            Id. at 78,

623 S.E.2d at 295.            Two years later, the plaintiff requested

medical compensation for degenerative arthritis in her knees.

This Court concluded that the Commission properly declined to

apply   the   Parsons     presumption         to   medical        treatment        for   the

arthritis and held that plaintiff's degenerative arthritis was

not compensable.         Id. at 79, 623 S.E.2d at 296.                        This Court

explained     that,    unlike    in    Parsons,      where      "the    plaintiff         was

suffering from the exact same complaint (headaches) for which

she was initially awarded medical expenses and future medical

treatment[,]"     in    Clark,       the   "plaintiff       [was]      suffering         from
                                           -26-
degenerative arthritis, while at the time of the initial award

plaintiff suffered a compensable knee injury caused by falls

related to her compensable injury by accident."                       Id.

    Finally, defendants contend that the Commission erred in

refusing    to     award    a    credit       to    defendants       for     compensation

payments made after the filing of the Form 24 application to

terminate    compensation.             When    an       employer     files    a   Form    24

application        to      terminate        compensation,            "the      employee's

compensation       shall        continue       pending         a   decision        by    the

Commission[.]"          N.C.    Gen.    Stat.       §    97-18.1(d)     (2013).          Rule

404(8) of the Workers' Compensation Rules of the North Carolina

Industrial Commission provides that after a full hearing, the

Commission may award retroactive termination of compensation and

that an employer may seek a credit pursuant to N.C. Gen. Stat. §

97-42 (2013).       The decision whether to grant a credit is within

the sound discretion of the Commission and will not be reversed

on appeal absent abuse of discretion.                     Cross v. Falk Integrated

Techs.,    Inc.,    190    N.C.    App.       274,      286,   661    S.E.2d      249,   257

(2008).

    In this case, the Commission denied defendants' request for

a credit based upon the following:

                 5.   In   the  Pre-Trial   Agreement,
            defendants listed as an issue "Whether
            [d]efendants  are  owed   a   credit   for
            overpayment of TTD to plaintiff after his
                                   -27-
             disability ended?" However, defendants made
             no argument for any such credit in their
             Contentions or proposed Opinion and Award to
             the Deputy Commissioner, and this issue was
             thus deemed abandoned and was not ruled upon
             by the Deputy Commissioner.         Based on
             defendants' failure to argue for any such
             credit in their Contentions or proposed
             Opinion    and   Award    to    the     Deputy
             Commissioner,   the   Commission,    in    its
             discretion, declines to grant defendants a
             credit for any overpayment of TTD to
             plaintiff. N.C. Gen. Stat. § 97-42.

On appeal, defendants make no argument that the Commission erred

in deeming their request for a credit abandoned, nor do they

make   any   argument   that   denial   of   a   credit   for   this   reason

amounted to an abuse of discretion.          We, therefore, affirm.


       Affirmed.

       Judge STEELMAN concurs.

       Judge ROBERT N. HUNTER, JR. concurred in this opinion prior

       to 6 September 2014.

       Report per Rule 30(e).
