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Lee v. Center9/17/2002
iew denied, ___ N.C. ___, 548 S.E.2d 524 (2001), a registered nurse suffered an admittedly compensable injury to her back while pushing a cart loaded with equipment. After her treating physician recommended a weight-loss program to take pressure off her back, she requested additional medical providers to treat complications from her stomach reduction surgery. The Full Commission denied her request without stating a reason. This Court reversed and remanded, stating that " bsent findings of fact or some other clear indication of the basis upon which the Commission denied the request, we cannot determine whether the decision was an appropriate exercise of the Commission's discretion." Clark, 142 N.C. App. at 360, 542 S.E.2d at 675. Therefore, based on our holding in Clark, in the case sub judice we must reverse and remand to the Full Commission for a clear ruling on plaintiff's motion to change treating physicians, with findingsof fact as to the timeliness of plaintiff's request. See Jenkins, 134 N.C. App. at 411, 518 S.E.2d at 10.
III.
In light of our rulings as to the first two arguments it is unnecessary to address plaintiff's third argument.
Conclusion
Based on the foregoing, we hold that the Full Commission erred in finding that plaintiff unjustifiably refused to submit to an examination and in concluding that defendant was therefore entitled to suspend plaintiff's benefits. We further hold that the Full Commission erred in failing to rule on plaintiff's motion to change treating physicians, in effect denying plaintiff's motion without making appropriate findings of fact as to the reasonableness of the motion. "Absent findings of fact or some other clear indication of the basis upon which the Commission denied the request, we cannot determine whether the decision was an appropriate exercise of the Commission's discretion." Clark, 142 N.C. App. at 360, 542 S.E.2d at 675. We therefore reverse and remand to the Full Commission to enter findings of fact and conclusions of law in accordance with this opinion.
REVERSED AND REMANDED.
Judge HUNTER concurs.
Judge WALKER concurs in the result with a separate opinion.
Report per 30(e). NO. COA01-650
WALKER, Judge, concurring in the result.
The distinction between the provisions of N.C. Gen. Stat. §§ 97-25 and 97-27 should be emphasized. Upon a proper finding, the Commission could allow Dr. Mackel to be plaintiff's treating physician under N.C. Gen. Stat. 95-25. However, the Commission, upon proper finding, may require plaintiff to be examined by a physician pursuant to defendant's request under N.C. Gen. Stat. § 97-27.
The Commission has created a mechanism for plaintiff to show that she should be entitled to transportation costs provided by defendant. The findings of the Commission should reflect whether she is entitled to these costs.
I urge the parties and the Commission to take the appropriate action to bring this matter to a resolution since plaintiff's benefits remain in suspension until these issues are resolved.
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