Insurance – Temporary Disability Benefits – Change in Treating Physician – Functional Capacity Evaluation – North Carolina Industrial Commission

Evidence supported the Full Commission’s decision granting Plaintiff’s request to change his treating physician and granting Plaintiff temporary total disability compensation.

We affirmed the North Carolina Industrial Commission’s opinion and award.

Defendants, employer Goodyear Tire & Rubber Company and carrier Liberty Mutual Insurance Company appealed from an opinion and award of the North Carolina Industrial Commission concluding Plaintiff was entitled to change his treating physician and receive temporary disability benefits.

First, Defendants argued the court’s finding prejudiced their right to direct Plaintiff’s medical care” pursuant to N.C. Gen. Stat. § 97-25(a). We disagreed. Generally, “an employer’s right to direct medical treatment (including the right to select the treating physician) attaches once the employer accepts the claim as compensable.” Kanipe v. Lane Upholstery, 141 N.C. App. 620, 624, 540 S.E.2d 785, 788 (2000). However, that right is not unlimited, as the employee, if he so desires, may also “select a health care provider of the employee’s own choosing to attend, prescribe, and assume the care and charge of the employee’s case subject to the approval of the Industrial Commission.” N.C. Gen. Stat. § 97-25(c) (2023). This provision allows an employee, even in the absence of an emergency, the right to choose their own physician. Schofield v. Great Atl. & Pac. Tea Co., Inc., 299 N.C. 582, 591, 264 S.E.2d 56, 62 (1980). The burden to prove the necessity of a change of treating physicians is on the employee. We noted that the Commission has broad discretion in approving a change of treating physician. Competent record evidence exists to support the Full Commission’s decision granting Plaintiff’s request to change his treating physician.

Next, Defendants contended the Full Commission erred in determining Plaintiff is entitled to disability benefits. Among other things, the evidence showed that when Plaintiff returned to work, he presented a copy of his doctor’s sedentary restrictions to Human Resources. A representative from Human Resources stated his employer could not “accommodate it so all we can do is send you back out.” In fact, the pre-trial agreement also reflects employer “did not accommodate these restrictions.” Because Plaintiff relied upon the work restrictions provided by the doctor, a physician employer consented to Plaintiff seeing, Plaintiff reasonably relied upon the doctor’s recommendations. Defendant’s failure to accommodate Plaintiff’s medically determined restrictions required him to remain out of work. Sufficient record evidence exists to support the Full Commission’s decision granting Plaintiff temporary total disability compensation.

Affirmed.

Horsey v. Goodyear Tire & Rubber Company (Lawyers’ Weekly No. 012-028-24, 19 pp.) (April Wood, J.) Appealed from the N.C. Industrial Commission. Lennon, Camak & Bertics, PLLC, by Michael W. Bertics, for the plaintiff-appellee; Hedrick, Gardner, Kincheloe & Garofalo, LLP, by M. Duane Jones and Matthew J. Ledwith for the defendant-appellant. North Carolina Court of Appeals Unpublished