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Lakey v. U.S. Airways12/31/2002
nts failed to assert how they were prejudiced by any delay in written notification. Although defendants assert they were prejudiced because they treated plaintiff's injury as an aggravation of a pre-existing injury, rather than a new injury or re-injury, defendants have failed to assert how this distinction resulted in prejudice. We find sufficient competent evidence to support the Commission's finding that defendants had actual knowledge of plaintiff's injury and were not prejudiced by any delay in notification.
Next, regardless of whether plaintiff's requests for approval were made within a reasonable time, defendants contend that the Commission abused its discretion in approving the treatment provided by physicians chosen by plaintiff. Defendants argue that plaintiff provided no basis for arbitrarily changing physicians and that Dr. Jones, plaintiff's approved physician, was still available to plaintiff.
Although an employer that has accepted an employee's injury as compensable generally has the right to direct the medical treatment, this right is not unlimited. Kanipe v. Lane Upholstery, 141 N.C. App. 620, 626, 540 S.E.2d 785, 789 (2000). However, "an injured employee may select a physician of own choosing to attend, prescribe and assume the care and charge of case" subject to the approval of the Commission. N.C. Gen. Stat. § 97-25. This provision gives an injured employee, even in the absence of emergency, the right to choose her own physician. See Schofield v. Great Atlantic & Pacific Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980). However, that right is subject to the Commission's approval of that physician. Id.; Lucas v. Thomas Built Buses, Inc., 88 N.C. App. 587, 364 S.E.2d 147 (1988).
The Commission has discretion to approve an injured employee's request for approval of a physician. Kanipe, 141 N.C. App. at 626, 540 S.E.2d at 789; Franklin v. Broyhill Furniture Industries, 123 N.C. App. 200, 207, 472 S.E.2d 382, 387 (1996). This Court will disturb the Commission's determination on this issue only upon a finding of manifest abuse of discretion. Deskins v. Ithaca Industries, Inc., 131 N.C. App. 826, 509 S.E.2d 232 (1998); Franklin, 123 N.C. App. at 207, 472 S.E.2d at 387.
Here, plaintiff was released by Dr. Jones on 20 January 1998. Although Dr. Jones saw plaintiff again on 5 May 1998 and offered to see her as needed, in his release he stated, "I am at a loss to provide additional information regarding possible diagnostic or therapeutic interventions." Because she continued to suffer from back and leg pain, plaintiff then sought treatment from Dr. Dichoso-Wood and other health care providers beginning 21 May 1998.
Where an injured employee was released to work by her approved physician but was still suffering from her injury , this Court held that the employee's unilateral decision to change physicians was not grounds for finding that she unjustifiably sought other treatment. Deskins, 131 N.C. App. at 832, 509 S.E.2d at 236. Here, also, plaintiff was released to work by her approved physician while still suffering from pain. Therefore, we do not find that the Commission abused its discretion in allowing approval of plaintiff's physicians.
Defendants also contend the Commission erred in failing to find facts required by N.C. Gen. Stat. § 97-25. Specifically, defendants argue the Commission did not make findings concerning whether plaintiff requested authorization to procure her own physician within a reasonable time. However, the Commission found:
The medical treatments provided by Drs. Dichoso-Wood and McLean, as well as by the pain specialists, have been reasonable and have helped give plaintiff some relief from he
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