NO. COA 13-1310

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

DEBORAH MILLER,

 Employee,

 Plaintiff,

v. From the Industrial Commission

No. I.C. W29159

MISSION HOSPITAL, INC.,

 Employer,

SELF-INSURED,

 Defendant.

Appeal by Plaintiff from Opinion and Award entered 6 August 

2013 by the North Carolina Industrial Commission. Heard in the 

Court of Appeals 8 April 2014.

Root & Root, PLLC, by Louise Critz Root, for plaintiffappellant.

Brewer Defense Group, by Joy H. Brewer and Ginny P. Lanier, 

for defendant-appellee.

STEELMAN, Judge.

Where the Industrial Commission held that defendant had 

rebutted the presumption that arose by virtue of the filing of a 

Form 60 and pursuant to Parsons v. Pantry, Inc., 126 N.C. App. 

540, 485 S.E.2d 867 (1997), the burden shifted back to plaintiff 

to establish her continuing need for medical treatment. Where 

plaintiff failed to meet this burden and failed to present 
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evidence of disability, the Commission properly ordered 

indemnity and medical compensation to plaintiff terminated.

I. Factual and Procedural Background

Deborah Miller (plaintiff) was born in 1952 and began 

working for Mission Hospital (defendant) around 1988. In 2003 

plaintiff was diagnosed with non-work related cervical 

spondylosis, a degenerative spinal condition. She underwent 

cervical fusion surgery at C3-C4 and returned to work in early 

2004. On 10 June 2009 plaintiff suffered a compensable injury by 

accident that aggravated her pre-existing back condition. She 

was referred to Dr. Stephen David, who treated her from 12 June 

2009 until early 2012. Plaintiff had an MRI scan on 14 June 

2009. Dr. David reviewed the results and observed a “disc 

protrusion at C2-C3” that had not been present in an MRI 

performed in January 2003. Dr. David believed that the C2-3 disc 

herniation was a contributing cause of her symptoms, in addition 

to the exacerbation of her chronic spinal condition. 

On 2 July 2009 defendant filed an Industrial Commission 

Form 60 admitting the compensability of plaintiff’s claim for 

workers’ compensation benefits and describing her injury as a 

C2-3 disc herniation. Tests performed at the direction of Dr. 

David revealed that the C2-3 disc herniation was not impinging 

upon plaintiff’s spinal nerves. However, plaintiff reported 
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significant pain and difficulty in performing daily activities 

to Dr. David, who treated her with cervical epidural injections, 

physical therapy, heat and ice on the affected areas, and 

various medications. 

On 2 February 2010 plaintiff had a functional capacity 

evaluation, and on 12 February 2010 Dr. David examined plaintiff 

and reviewed the results of the evaluation. He concluded that 

plaintiff had reached maximum medical improvement and could 

return to work full time, with restrictions. However, a few 

weeks later, plaintiff reported to Dr. David that her symptoms 

had gotten worse. Dr. David found plaintiff “difficult to treat” 

because, despite the variety of treatments she did not have “any 

significant break-throughs,” and his notes from 16 June 2010

state that he found it necessary to “write her out of work 

permanently.”

Defendant hired a private investigator, who made videos in 

March 2010 depicting plaintiff engaging in daily activities over 

a number of days. On 19 April 2011 plaintiff was examined by Dr. 

Dennis White, a specialist in pain medicine. He initially 

diagnosed plaintiff with ‘peripheralized’ pain in “a global, 

nonspecific pain pattern.” However, when Dr. White viewed the 

video surveillance of plaintiff, he found her movements as shown
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on the surveillance video to be inconsistent with her behavior 

and with the symptoms she reported during his examination. 

Dr. Craig Brigham, an orthopedic surgeon who specializes in 

spine surgery, examined plaintiff on 27 January 2011 and found 

her to have a “near full range of motion of her cervical spine”

as well as a “normal range of motion of the shoulders.” Dr. 

Brigham saw no objective reason that plaintiff could not return 

to full duty work without restriction, and opined that the 

consequences of her work injury had resolved and that no further 

treatment was needed. Dr. Dahari Brooks, an orthopedic 

specialist, reviewed plaintiff’s medical records, Dr. Brigham’s 

notes and the surveillance videos. Based upon his review of 

these records, Dr. Brooks agreed with Dr. Brigham’s assessment. 

He observed that the videos showed plaintiff engaging in 

activities that were inconsistent with the subjective complaints

noted in her medical records, and that her physical motions in 

the surveillance vidoes did not correlate with the restricted 

motion she described during her office visits. He testified that 

Plaintiff was capable of returning to full duty work without 

restriction and did not need further medical treatment.

On 23 August 2011 plaintiff filed an Industrial Commission 

Form 33 requesting that her claim be assigned for hearing. The 

Full Commission issued its Opinion and Award on 6 August 2013.
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The Commission concluded that plaintiff had “regained the 

capacity to earn the same wages she was earning at the time of 

the injury in the same employment, and therefore, she is not 

disabled” and that “there is no need for ongoing medical 

treatment in this case related to Plaintiff’s injury by accident 

on June 10, 2009.” The Commission ordered defendant to “stop 

payment of indemnity and medical compensation to Plaintiff.” 

Plaintiff appeals. 

II. Standard of Review

The standard of review in workers’

compensation cases has been firmly 

established by the General Assembly and by 

numerous decisions of this Court. . . . 

Under the Workers’ Compensation Act, ‘[t]he 

Commission is the sole judge of the 

credibility of the witnesses and the weight 

to be given their testimony.’ Therefore, on 

appeal from an award of the Industrial 

Commission, review is limited to 

consideration of whether competent evidence 

supports the Commission’s findings of fact 

and whether the findings support the 

Commission’s conclusions of law. This 

‘court’s duty goes no further than to 

determine whether the record contains any 

evidence tending to support the finding.’

“[F]indings of fact which are left 

unchallenged by the parties on appeal are 

‘presumed to be supported by competent 

evidence’ and are, thus ‘conclusively 

established on appeal.’” The “Commission's 

conclusions of law are reviewed de novo.”

Spivey v. Wright’s Roofing, __ N.C. App. __, __, 737 S.E.2d 745, 

748-49 (2013) (quotations and citations omitted). 
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III. Commission’s Description of Plaintiff’s Injury

In her first argument, plaintiff contends that the 

Commission erred in Conclusion of Law No. 1 by holding “that 

plaintiff had sustained an aggravation of a pre-existing 

condition” without holding that she had also suffered a disc 

herniation. Plaintiff does not dispute that she had a preexisting spinal condition or challenge the evidentiary support 

for the Commission’s finding that her compensable injury 

included an exacerbation of this pre-existing condition. 

Instead, she contends that it was error for the Commission not 

to specify that she also suffered a disc herniation. Plaintiff 

appears to argue that (1) defendant attempted “to void the 

agreement” represented by the execution of an Industrial 

Commission Form 60 by denying that she had a disc herniation as 

stated on the Form 60, and that (2) whether or not she suffered 

a disc herniation was a disputed issue of legal significance 

which the Commission was required to resolve. We disagree with 

both assertions.

Plaintiff does not identify any evidentiary basis for her

assertion that defendant attempted to have the Form 60 set 

aside. For example, she does not contend that defendant filed a 

motion to have the Form 60 set aside, or that defendant ever 

denied that plaintiff suffered a compensable injury as admitted 
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by the Form 60. The forms filed by the parties make it clear 

that they agreed that plaintiff had suffered a compensable 

injury in 2009, but disagreed about whether or not she remained 

disabled or needed further medical treatment several years 

later. In the Industrial Commission Form 33 that plaintiff filed 

to request a hearing, she asserted that “Plaintiff maintains and 

defendants deny that plaintiff is permanently and totally 

disabled.” In the Form 33R that defendant filed in response,

defendant asserted that “Plaintiff has failed to present 

sufficient evidence to establish that she remains disabled as a 

result of her compensable injury or that she is permanently and 

totally disabled.” Thus, both parties characterized their 

dispute as a disagreement about the duration of plaintiff’s 

disability, and not as a conflict about the nature of her 

original injury or the validity of the Form 60. 

Plaintiff also fails to articulate why the Commission was 

required to make more detailed findings about her original 

injury in its determination of whether she was entitled to 

continued disability or medical compensation at the time of the 

hearing. Moreover, in its Conclusion of Law No. 3 the Commission 

specifically addressed the legal implications of the fact that 

the Form 60 characterizes plaintiff’s injury as a disc 

herniation. Plaintiff fails to explain how she was prejudiced by 
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the Commission’s failure to specify that she had a C2-3 disc 

herniation in its Conclusion No. 1, given that this issue is 

expressly addressed in another conclusion of law.

We hold that there is no evidence that defendant attempted 

to “void” the Form 60, and that plaintiff was not prejudiced by 

the Commission’s characterization of her admittedly compensable 

injury as an aggravation of her pre-existing condition rather 

than an aggravation of her condition and also a separate disc 

herniation. 

This argument is without merit.

IV. Cessation of Medical Compensation

In her next argument, plaintiff asserts that the 

Commission’s conclusion that she did not need further medical 

compensation was “not supported by the evidence of record or 

applicable law.” We disagree. 

Medical compensation is defined as “medical, surgical, 

hospital, nursing, and rehabilitative services” that “may 

reasonably be required to effect a cure or give relief” or “tend 

to lessen the period of disability[.]” N.C. Gen. Stat. § 97-

2(19). “In a workers’ compensation claim, the employee ‘has the 

[initial] burden of proving that his claim is compensable.’” 

Holley v. Acts, Inc., 357 N.C. 228, 231, 581 S.E.2d 750, 752 

(2003) (quoting Henry v. Leather Co., 231 N.C. 477, 479, 57 
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S.E.2d 760, 761 (1950)). “The degree of proof required of a 

party plaintiff under the Act is the ‘greater weight’ of the 

evidence or ‘preponderance’ of the evidence.” Phillips v. U.S. 

Air, Inc., 120 N.C. App. 538, 541-42, 463 S.E.2d 259, 261 

(1995). “The employer’s filing of a Form 60 is an admission of 

compensability.” Perez v. Am. Airlines/AMR Corp., 174 N.C. App. 

128, 135, 620 S.E.2d 288, 293 (2005) (citing Sims v. 

Charmes/Arby’s Roast Beef, 142 N.C. App. 154, 159, 542 S.E.2d 

277, 281 (2001)). “Where a plaintiff’s injury has been proven to 

be compensable, there is a presumption that the additional 

medical treatment is directly related to the compensable injury. 

The employer may rebut the presumption with evidence that the 

medical treatment is not directly related to the compensable 

injury.” Perez, 174 N.C. App. at 135, 620 S.E.2d at 292 (citing 

Reinninger v. Prestige Fabricators, Inc., 136 N.C. App. 255, 

259, 523 S.E.2d 720, 723 (1999), and Parsons v. Pantry, Inc., 

126 N.C. App. 540, 542, 485 S.E.2d 867, 869 (1997). If the 

defendant rebuts the Parsons presumption, the burden of proof 

shifts back to the plaintiff. See McCoy v. Oxford Janitorial 

Service Co., 122 N.C. App. 730, 733, 471 S.E.2d 662, 664 (1996) 

(“[T]he signing of the Form 21 agreement established a 

presumption of the plaintiff’s disability. The defendant then 

presented evidence . . . successfully rebutting plaintiff’s 
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presumption of disability, and the burden shifted back to the 

plaintiff.”).

As discussed above, defendant admitted the compensability 

of plaintiff’s injury by filing a Form 60 on 22 June 2009. 

Therefore, the issue before the Commission was not whether 

plaintiff had suffered a compensable workplace accident in 2009, 

or whether she experienced a C2-3 disc herniation, but whether 

at the time of the hearing she required any further medical 

treatment for her injury. In this regard, the Commission found 

in relevant part that: 

. . . 

3. On June 10, 2009, Plaintiff sustained an 

injury by accident arising out of and in the 

course of her employment with Defendant[.]

. . . 

6. Plaintiff was referred to Dr. Stephen 

Michael David . . . and began treating with 

him on June 12, 2009. Plaintiff received 

conservative treatment from Dr. David from 

mid-2009 through early 2012[.] . . . 

7. Dr. David recommended a cervical MRI, 

which was done on June 14, 2009. . . . In 

the opinion of Dr. David, the June 2009 

cervical MRI revealed the prior surgical 

fusion at C3-C4, cervical spondylosis with 

broad-based disc osteophyte formation at C5-

C6, as well as a new central disk protrusion 

at C2-3. . . . 

. . . 
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9. Nerve conduction studies were done on 

January 12, 2010, . . . [which showed] no 

evidence of cervical entrapment. . . . 

. . . 

11. . . . [O]n February 12, 2010 . . . Dr. 

David assessed Plaintiff at maximum medical 

improvement . . . [and] released her to 

return to work with restrictions[.] . . . 

12. Shortly after being released to return 

to work with restrictions, Plaintiff 

returned to Dr. David on March 2, 2010, 

reporting an aggravation of her neck pain. . 

. . 

. . . 

14. Defendant engaged a private investigator 

to conduct surveillance on Plaintiff. . . . 

15. . . . [The video surveillance] shows 

Plaintiff engaging in many of the activities 

of daily living. Her movements have been 

noted to be inconsistent with what was 

expected by the physicians, based upon her 

presentations in their offices. The video 

shows more fluid and natural movement than 

Plaintiff demonstrated in the offices of the 

physicians or at the hearing before Deputy 

Commissioner Ledford.

. . . 

21. . . . Plaintiff was examined on April 

19, 2011 by Dr. Dennis White, a specialist 

in pain medicine. Upon examination, Dr. 

White noted that Plaintiff appeared to be in 

distress, guarding her neck movements and 

avoiding any flexion of the neck or gestural 

range of motion while communicating. 

According to Dr. White, Plaintiff was 

deliberately avoiding any movement because 

of pain. . . . 
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. . . 

23. . . . Dr. White viewed the video of the 

surveillance of Plaintiff. He found her 

movements on the surveillance [video] to be 

inconsistent with what she demonstrated at 

the time of the examination[, and testified 

that] . . . . Plaintiff’s movement on the 

surveillance video was natural, spontaneous, 

gestural, and rhythmic, and that he “didn't 

see any sign of distress whatsoever.” . . . 

24. Dr. Craig Brigham, an orthopedic surgeon 

who specializes in spine surgery, examined 

Plaintiff on January 27, 2011[.] . . . Dr. 

Brigham found no neurological abnormalities 

and no motor deficits. Dr. Brigham found 

“near full range of motion of her cervical 

spine considering she has had a 1-level 

fusion as well as normal range of motion of 

the shoulders.” . . . 

25. Dr. Brigham testified that he saw no 

acute distress when he examined Plaintiff 

and . . . no objective basis as to why 

Plaintiff could not return to full duty work 

without restriction[,] . . . based upon his 

review of the medical records and what he 

found to be a lack of objective evidence of 

ongoing problems, as well as the 

inconsistencies noted in his physical 

examination of Plaintiff. He opined that any 

consequences of the work injury had resolved 

and no further treatment was needed.

26. Dr. Dahari Brooks, an orthopaedic 

specialist, conducted a medical records 

review . . . [and] agreed with the 

assessment of Dr. Brigham. In his opinion, 

the surveillance footage he reviewed showed 

Plaintiff engaging in activities which were 

inconsistent with her subjective pain 

complaints[.] . . . Plaintiff’s physical 

motions as seen in the surveillance footage 

failed to correlate with the restricted 

motion she described during the course of 
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her office visits. . . . Dr. Brooks opined 

that Plaintiff was capable of returning to 

full duty work without restriction and that 

she would not need further medical 

treatment.

. . .

33. Based upon a preponderance of the 

evidence in view of the entire record, the 

Full Commission does not find Plaintiff’s 

testimony regarding the nature and severity 

of her complaints to be credible.

34. In assessing the expert medical 

testimony, the Full Commission places 

greater weight on the testimony of Dr. 

Brooks, Dr. White, and Dr. Brigham, as 

opposed to that of Dr. David[.] . . . There 

is no objective basis for Plaintiff’s 

complaints of ongoing, disabling . . . pain, 

and these complaints are belied by the video 

surveillance evidence. . . . Dr. David’s 

opinions are based in large part on 

Plaintiff’s subjective complaints, which the 

Full Commission does not find credible.

Plaintiff has not challenged the evidentiary support for these 

findings of fact, which are therefore binding on appeal. Johnson 

v. Herbie’s Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118 

(2003). We hold that these findings support the Commission’s 

conclusion that “any consequences of Plaintiff’s work-related 

injury have resolved and that there is no need for ongoing 

medical treatment in this case related to Plaintiff’s injury by 

accident on June 10, 2009.” 

In arguing for a different result, plaintiff appears to 

argue that the Form 60 automatically entitles her to additional
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medical compensation. However, in Conclusion No. 3 the 

Commission addressed the implications of defendant’s execution 

of the Form 60 and stated that:

3. Since Defendant filed a Form 60 admitting 

the compensability of Plaintiff’s injury to 

her spine, specifically her “C2-3 Disk 

Herniation,” there is a rebuttable 

presumption that the additional medical 

treatment for her spine is directly related 

to the compensable injury. . . . Parsons v. 

Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 

867 (1997). . . . Defendant has successfully 

rebutted the Parsons presumption with 

competent, credible medical evidence that 

any consequences of Plaintiff’s work-related 

injury have resolved and that there is no 

need for ongoing medical treatment in this 

case related to Plaintiff’s injury by 

accident on June 10, 2009. Therefore, the 

burden shifted back to Plaintiff to prove 

that her medical conditions are related to 

her accident at work on June 10, 2009. The 

Full Commission concludes that Plaintiff has 

failed to meet this burden, and therefore, 

Defendant is not responsible for ongoing 

medical compensation.

This conclusion acknowledges the presumption arising under 

Parsons from the Form 60, but concludes that defendant 

successfully rebutted the presumption and that plaintiff failed 

to meet her burden to produce competent medical evidence that 

her claim for ongoing medical benefits was “related to her 

accident at work on June 10, 2009.” Plaintiff has not challenged 

the factual or evidentiary support for this conclusion of law, 

or disputed its legal validity. We hold that the Commission did 
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not err by concluding that plaintiff was not entitled to further 

medical benefits arising from this claim. 

V. Cessation of Indemnity Compensation

Finally, plaintiff asserts that the Commission “erred by 

allowing [defendant] to stop paying indemnity compensation to 

plaintiff.” We disagree. 

N.C. Gen. Stat. § 97-2(9) defines “disability” as an 

“incapacity because of injury to earn the wages which the 

employee was receiving at the time of injury in the same or any 

other employment.” In is well-established that:

The burden is on the employee to show that 

he is unable to earn the same wages he had 

earned before the injury, either in the same 

employment or in other employment. The 

employee may meet this burden in one of four 

ways: (1) the production of medical evidence 

that he is physically or mentally, as a 

consequence of the work related injury, 

incapable of work in any employment, (2) the 

production of evidence that he is capable of 

some work, but that he has, after a 

reasonable effort on his part, been 

unsuccessful in his effort to obtain 

employment, (3) the production of evidence 

that he is capable of some work but that it 

would be futile because of preexisting 

conditions, i.e., age, inexperience, lack of 

education, to seek other employment, or (4) 

the production of evidence that he has 

obtained other employment at a wage less 

than that earned prior to the injury. 

Russell v. Lowe’s Product Distribution, 108 N.C. App. 762, 765-

66, 425 S.E.2d 454, 457 (1993) (citing Hilliard v. Apex Cabinet 
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Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982), Peoples v. 

Cone Mills Corp., 316 N.C. 426, 443-44, 342 S.E.2d 798, 809

(1986), and Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 730, 

403 S.E.2d 548, 550 (1991)). In this case, the Commission 

concluded in relevant part that: 

2. Plaintiff bears the burden of proving 

disability. . . . In the case at bar, 

Plaintiff has failed to prove disability 

under any prong of Russell. Moreover, the 

competent, credible evidence of record 

establishes that as of January 27, 2011, 

Plaintiff had regained the capacity to earn 

the same wages she was earning at the time 

of the injury in the same employment, and 

therefore, she is not disabled within the 

meaning of N.C. Gen. Stat. § 97-2(9). . . . 

This conclusion is supported by the findings quoted above 

in relation to the issue of plaintiff’s entitlement to further 

medical benefits, by the Commission’s findings detailing 

plaintiff’s physical abilities as depicted on the surveillance 

videos, and by its findings that: 

. . . 

25. Dr. Brigham testified that he saw no 

acute distress when he examined Plaintiff 

and that he saw no objective basis as to why 

Plaintiff could not return to full duty work 

without restriction. . . . 

26. . . . Based upon his review of the 

medical records, as well as the 

surveillance, Dr. Brooks opined that 

Plaintiff was capable of returning to full 

duty work without restriction and that she 

would not need further medical treatment.
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Plaintiff acknowledges that these findings support the 

Commission’s conclusion that she was no longer disabled. 

However, she appears to argue that, because the Form 60 

specified that she had suffered a C2-3 disc herniation, the 

Commission could not properly rely upon an expert’s opinion 

regarding disability unless the expert “formed this diagnosis 

[of a disc herniation] as a basis of their opinion.” However, 

the Form 60, although establishing the compensability of her 9 

June 2009 injury, did not give rise to any legal presumption 

regarding whether she remained disabled in 2012. The “use of the 

Form 60 did not entitle plaintiff to a presumption of continuing 

temporary disability[.]” Sims, 142 N.C. App. at 160, 542 S.E.2d 

at 282. The Commission’s ruling on plaintiff’s claim for 

disability required it to determine whether or not plaintiff was 

capable of returning to work. Plaintiff cites no authority in 

support of her contention that an expert’s opinion on her 

ability to return to work in 2012 requires the expert to agree 

that in 2009 plaintiff suffered the specific injury set out in 

the Form 60. In other words, plaintiff fails to articulate how 

the fact that the Form 60 described her injury as a C2-3 disc 

herniation is relevant to the question of whether or not the 

symptoms arising from plaintiff’s June 2009 compensable injury 

had resolved several years later. We hold that the expert 
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opinions of Dr. Brooks and Dr. Brigham that plaintiff was 

capable of returning to work were not invalidated by the fact 

that their assessment of plaintiff’s condition was not based on 

their agreement that plaintiff suffered a disc herniation as a 

result of her compensable injury, and that the Commission did 

not err by ruling that plaintiff was no longer disabled. 

For the reasons discussed above, we hold that the 

Commission did not err and that its Opinion and Award should be

AFFIRMED.

Judges HUNTER, Robert C., and BRYANT concur.