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Boles v. U.S. Air2/5/2002
impairments that would keep plaintiff from being capable of performing tasks required in the reservationist position. Dr. Jones opined that treatment with specific benchmarks would be more appropriate than Dr. Branham's open-ended treatment program.
During the hearing, plaintiff admitted that she was aware that Dr. Branham was the only physician that she had seen since 1993 who is continuing to excuse her from work as a reservationist. Plaintiff also testified that she did not feel that she was capable of performing her job as reservationist because she was in so much pain that it caused her to have impaired memory and cognitive ability. Plaintiff further testified that she has not attempted to perform the actual job of reservationist since September 1993.
On 25 January 1995 a deputy commissioner heard plaintiff's G.S. § 97-47 motion to reopen her claim by reason of a change in condition for the worse, and her G.S. § 97-25 motion for Commission approval of Dr. Branham and Dr. Rauck. On 5 May 1995, the deputy commissioner ruled that plaintiff had sustained a substantial change for the worse in her condition from the 7 March 1991 back injury resulting in her becoming totally disabled by the same injury on 24 September 1993. Plaintiff was awarded compensation at a rate of $306.42 per week from 24 September 1993 to the scheduled hearing date and continuing thereafter at the same rate for so long as she remains totally disabled. The deputy commissioner also ruled that defendant shall pay all reasonable and necessary medical expenses incurred by plaintiff as a result of her substantial change of condition, including continued psychiatric treatment provided by Dr. Branham and any other treatment he may reasonably recommend that would tend to reduce her chronic incapacitating pain such as a return to the pain clinic. Neither party appealed from the deputy commissioner's opinion and award.
On 7 April 1997, defendant filed a Form 24 "Application to Terminate Payment of Compensation", alleging that plaintiff had unjustifiably refused the employer's offer of suitable employment (as reservations agent) on 14 March 1997. The matter was heard by a deputy commissioner who ruled that plaintiff was justified in refusing the job offer under G.S. § 97-32, that plaintiff remains totally disabled as a result of her 7 March 1991 compensable injury and is entitled to continuing compensation under G.S. § 97-29, and that Dr. Branham remain the treating physician under G.S. § 97-25. Defendant appealed to the Full Commission which modified and affirmed the decision of the deputy commissioner and ordered defendant to continue to pay compensation to plaintiff for temporary total disability, and to continue to pay for her medical treatment, including that provided by Dr. Branham. Defendant appeals.
I.
Defendant first contends that there is no competent evidence to support the Commission's finding of fact that plaintiff remains disabled and therefore, the Commission erred in awarding continued temporary total disability compensation to plaintiff. Defendant specifically assigns error to the following Commission's findings of fact: ". . . Dr. Branham maintains that plaintiff cannot return to work at this time, and remains totally disabled" and " ased upon the restrictions on plaintiff's return to work imposed by [Dr. Branham], the job of reservation agent was not suitable employment and plaintiff's refusal to accept the job of reservation agent offered by defendant on 14 March 1997, was justified."
At the outset, " he standard of review for an appeal from an opinion and award of the Industrial Commission is limited to a determination of (1) whether the Commission's findings
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