North Carolina Lawyers Weekly
Keeton v. Circle K (Lawyers Weekly No. 13-08-0217, 13 pp.) (Linda Cheatham, Commissioner) Appealed from Opinion & Award of Deputy Commissioner Phillip A. Holmes. I.C. No. 995294.
Holding: We held previously that defendants have a credit under G.S. § 97-42 for payments of temporary total disability compensation made to plaintiff after Aug. 28, 2009. If plaintiff’s doctor still recommends surgery after a reevaluation, she will be entitled to temporary disability benefits for an indefinite period. Therefore, we cannot order recoupment of defendants’ credit via a shortening of the payment period. Defendants are entitled to deduct 50 percent per week from any payment of temporary total or temporary partial disability compensation due plaintiff should she undergo surgery and be disabled thereafter, until they have recouped the amount of the credit.
Although Dr. Carlton previously recommended a functional restoration program for plaintiff, he confirmed during his deposition testimony that, because plaintiff’s leg pain was getting worse and Dr. Cohen had recommended surgery, Dr. Carlton was unable to admit plaintiff into his functional restoration program. Dr. Carlton further confirmed that, even if plaintiff were ordered to attend such a program, he would not be “comfortable” admitting her into the program under the circumstances. Plaintiff does not have to participate in the functional restoration program first recommended by Dr. Carlton.
