State News : North Carolina

An employer’s right to direct medical treatment, long recognized as a staple of the Workers’ Compensation Act, is not total. The Court of Appeals’ January 2024 decision in Horsey v. Goodyear Tire & Rubber Co. is a reminder of that fact. Id. at 2024 N.C. App. LEXIS 61 * | 2024 WL 158256 The Plaintiff in Horsey injured his neck and shoulder while working as a tread booker. He treated with Dr. Brian Szura, who performed three surgeries on Plaintiff’s left and right shoulders. Plaintiff completed an FCE which indicated he could not return to work as a tread booker but could perform other jobs for Defendant-Employer that were within his permanent restrictions. Thereafter, Plaintiff returned to work in the “green tire” position, which was a new position. The written job description for the green tire position did not list any job demands outside of his permanent restrictions. Plaintiff alleged he was asked to do work outside of his restrictions and left the position. Plaintiff reported to the onsite medical clinic in the fall of 2018 reporting pain in both shoulders as a result of the new position. He returned to Dr. Szura in March of 2019, reporting pain, exhibiting limited range of motion, and Dr. Szura maintained the work restrictions and offered no additional orthopedic treatment.

Plaintiff, shortly thereafter and on his own initiative, sought treatment with Dr. Wilson regarding his complaints of shoulder pain, neck pain, and numbness in his hand. Dr. Wilson did not review Plaintiff’s prior medical records and relied only on Plaintiff’s description of his medical history, which was not fully accurate. Dr. Wilson opined Plaintiff’s ongoing complaints were related to the original workers’ compensation injury and recommended an MRI of the neck and right shoulder. He did not suggest any job restrictions. The parties entered into a Consent Order on February 3, 2020, whereby Defendants agreed to authorize the MRI evaluations and corticosteroid injection recommended by Dr. Wilson with the explicit caveat that such authorization was made without prejudice and did not constitute a formal selection of Dr. Wilson as the authorized treating physician. On March 31, 2020, Dr. Wilson provided restrictions of sedentary work only and no use of the right arm.

Plaintiff continued to work in the green tire position until the Defendant-Employer’s facility was closed down in late March 2020 as a result of the COVID-19 pandemic. When the facility reopened on May 26, 2020, Plaintiff presented the sedentary work restrictions assigned by Dr. Wilson. Defendant-Employer could not accommodate the restrictions, so Plaintiff remained out of work. Defendants subsequently filed a Form 61, Denial of Claim, denying the causal relationship of Plaintiff’s cervical and radicular complaints to the original work-related injury; Plaintiff’s claim of disability; Plaintiff’s request for medical compensation; and the causal relationship of Plaintiff’s right shoulder.

On August 13, 2020, Plaintiff returned to Dr. Szura and continued to complain of shoulder pain. Dr. Szura opined Plaintiff’s symptoms were consistent with myofascial pain, and he did not recommend additional surgical intervention. He also observed Plaintiff was experiencing limitations in both his right and left shoulder range of motion.

The parties litigated the issue of a change in treating physician, among other issues, with the Full Commission finding Plaintiff sustained an exacerbation of his work-related injury as a result of being instructed to perform tasks outside of his restrictions. The Full Commission further ordered that Plaintiff’s future medical care should be provided by a provider other than Dr. Szura or Dr. Wilson. It noted as well that Plaintiff had reasonably relied upon Dr. Wilson’s sedentary work restrictions. However, the Full Commission concluded that Plaintiff failed to establish that such restrictions continue to be medically necessary. Defendants appealed to the Court of Appeals and one of the issues was whether the Full Commission erred in determining Plaintiff was entitled to a change in treating physician.

The Court of Appeals, in finding that the Full Commission did not err in determining Plaintiff was entitled to a change in treating physicians, noted first that the employer’s right to direct medical treatment (including the right to select the treating physician) was not unlimited. The Court noted that subject to approval of the Industrial Commission, an employee, even in the absence of an emergency, had the right to choose their own physician. They then also had the burden of demonstrating that the change was reasonably necessary to effect a cure, provide relief, or lessen the period of disability. The Court added that the Industrial Commission had broad discretion in approving a request for change of treating physician. It also noted that adequate justification warranting a change of treating physician existed when an employee continued to experience pain that the approved treating physician was unable or unwilling to treat.

In Horsey, the Court found competent evidence of record existed to support the Full Commission’s ruling that Plaintiff was entitled to a change in treating physicians by pointing to Dr. Szura’s failure to adequately address Plaintiff’s ongoing pain and limited range of motion. The Court further highlighted that Dr. Wilson did not review any of Plaintiff’s prior medical records before recommending surgery and had relied instead solely on Plaintiff’s recitation of his medical history, which was inaccurate. As a result, the Full Commission did not err in determining Plaintiff was entitled to a change in treating physicians or in its decision to order Plaintiff’s care be transferred to a physician other than Dr. Szura or Dr. Wilson.

Practice pointer for Defendants: if you have a Plaintiff who is continuing to complain of ongoing pain and issues, and the treating physician you have selected does not offer additional solutions, then you may want to consider sending your Plaintiff to another physician or risk your Plaintiff obtaining his own physician who provides more restrictive restrictions. In this case, Defendants also ended up being liable for TTD for the period of time when Plaintiff had sedentary restrictions from Dr. Wilson that Defendant-Employer could not accommodate as the Full Commission found, and the Court of Appeals agreed (competent evidence existed standard), that Plaintiff had reasonably relied on Dr. Wilson’s sedentary work restrictions.