Lead Opinion
2. An employee-employer relationship existed between the named employee and named employer.
3. The carrier liable on the risk is correctly named.
4. Employee sustained a compensable injury by accident on or about September 11, 2003.
5. At the hearing, the parties submitted the following:
(a) Packet of medical records from Eastern Neurological and Spine Associates, Inc. and Trinity Family Medicine, P.A., which were submitted into the Record and marked as Stipulated Exhibit No. 2; and
(b) Executed Pre-Trial Agreement signed by the parties.
6. The issue before the Industrial Commission to be determined is whether plaintiff is entitled to a second opinion regarding the need for another myelogram and post-myelogram CT scan.
2. Plaintiff sustained a compensable neck injury on or about September 11, 2003. Plaintiff hurt his neck and shoulder area while stepping off a lift gate.
3. Defendants admitted compensability and began paying plaintiff temporary total disability benefits at a compensation rate of $500.79 beginning September 12, 2003. Plaintiff was initially treated by his family physician, Dr. Crawford, for neck and left arm pain in September 2003. Dr. Crawford ordered X-rays and an MRI. Based on the MRI results, Dr. Crawford was of the opinion plaintiff needed to see a specialist and referred plaintiff to see Keith A. Tucci of Eastern Neurosurgery and Spine Center in Greenville, North Carolina for a neurosurgical evaluation.
4. Dr. Tucci examined plaintiff on October 13, 2003. Plaintiff complained at that time of neck pain radiating into his left upper extremity. Dr. Tucci ordered a cervical myelogram and post-myelogram CT scan. These tests showed involvement of the left C-6 nerve root and left C-6 radiculopathy. Dr. Tucci recommended plaintiff have neck surgery. Dr. Tucci performed a left C5-6 foraminotomy, laminectomy and nerve root compression on October 23, 2003.
5. Dr. Tucci provided medical care to plaintiff until January 29, 2004, at which time he was of the opinion that plaintiff had reached maximum medical improvement. Dr. Tucci assigned plaintiff a 9% permanent partial disability rating to his neck, issued permanent work restrictions and released plaintiff from his care.
6. On January 3, 2005, plaintiff presented himself again to Dr. Tucci's office, complaining of neck and right shoulder pain. Dr. Tucci's Physician Assistant, Connie Cerne, examined plaintiff at that time and noted that plaintiff gave a history of having right-sided neck and right shoulder pain for a few months. Ms. Cerne recommended another cervical myelogram and post-myelogram CT scan.
7. Plaintiff consulted with Dr. Tucci on February 7, 2005 regarding Ms. Cerne's recommendations. Dr. Tucci testified that he originally was in agreement with Ms. Cerne's recommendations for another myelogram and post-myelogram CT scan. However, following his examination of plaintiff on February 7, 2005, Dr. Tucci stated his opinion regarding additional testing changed because plaintiff was not having any radicular pain or significant neck symptoms. Dr. Tucci opined that plaintiff did not need additional medical care or testing, including another myelogram and post-myelogram CT scan, as these were not necessary and would be of no medical benefit to plaintiff.
8. Dr. Crawford, plaintiff's family physician, confirmed that the only benefit to a neurosurgical evaluation at this point in plaintiff's medical care would be that it would do nothing more than reinforce what he and Dr. Tucci already knew. Dr. Crawford did not have an opinion as to whether another neurosurgical evaluation was necessary or would effect a cure given that plaintiff had had a complete neurosurgical evaluation by Dr. Tucci in February 2005.
2. As a result of the September 11, 2003 injury by accident, plaintiff is entitled to have defendant continue payments of ongoing disability compensation until such time as he returns to work or further order of the Industrial Commission. N.C. Gen. Stat. §
3. As a result of his September 11, 2003 injury by accident, plaintiff is entitled to have defendant pay all reasonable and necessary medical expenses that will provide relief or effect a cure. However, the undersigned find, based on the testimony of the plaintiff's family physician and his treating neurosurgeon, plaintiff does not need an additional cervical myelogram and post-cervical myelogram CT scan. N.C. Gen. Stat. §§
2. Defendants shall pay for all necessary medical expenses that will provide relief or effect a cure as a result of the September 2003 injury by accident. However, plaintiff is not entitled to another cervical myelogram and post-cervical myelogram CT scan based on the testimony of Dr. Crawford and Dr. Tucci.
3. Defendants shall pay the costs.
This the 28th day of July, 2006.
S/_________________ DIANNE C. SELLERS COMMISSIONER
CONCURRING:
S/____________ BUCK LATTIMORE CHAIRMAN
DISSENTING:
S/_____________ THOMAS J. BOLCH COMMISSIONER
Dissenting Opinion
Because I believe that the majority has erred in denying plaintiff a second opinion regarding the need for further diagnostic testing, I respectfully dissent.
Plaintiff experienced neck and left arm pain following a compensable injury by accident in September 2003, undergoing neurosurgery with Dr. Tucci in October 2003. Plaintiff has continued to suffer neck pain since his January 2004 release by Dr. Tucci, and plaintiff has additionally experienced right shoulder pain and numbness since at least June 2004. Plaintiff's neck and right shoulder pain is presumptively related to plaintiff's injury by accident pursuant to Parsons v. Pantry,Inc.,
Because of his continuing neck and shoulder pain, plaintiff returned to Dr. Tucci's office in January 2005 on the referral of his family physician, Dr. Crawford. After examination by Dr. Tucci's PA, Dr. Tucci recommended plaintiff undergo a new cervical myelogram and post-myelogram CT scan. However, defendant-carrier refused to pay for the diagnostic testing. Upon plaintiff's return to Dr. Tucci's office in February 2005, Dr. Tucci reversed his earlier recommendation, concluding instead that there was nothing further he could do for plaintiff's condition and that further diagnostic testing was unnecessary. Plaintiff, continuing to suffer neck and shoulder pain, sought a second opinion from another neurologist regarding whether further diagnostic testing might be useful, but defendant-carrier refused to authorize it. Plaintiff now comes before the Commission seeking approval for such a second opinion and, should the second opinion be that diagnostic testing would be appropriate, approval for such diagnostic testing itself.
I believe the majority has erred in finding as fact that Dr. Crawford "confirmed" that further diagnostic testing would only reinforce what he and Dr. Tucci already knew, because that finding of fact has no support in the evidence of record. Dr. Crawford testified that he has been unable to help plaintiff with his continuing neck and shoulder pain, and that he recommends that plaintiff be seen by another neurosurgeon other than Dr. Tucci. When asked whether another neurosurgical evaluation is reasonably necessary to effect a cure or give relief, Dr. Crawford testified, "I don't know whether it would effect a cure, but it might just reinforce what we already know." It is clear from Dr. Crawford's testimony that he considers himselfunqualified to give any opinion regarding plaintiff's neurological condition, and that he does not know whether further diagnostic testing would confirm or refute Dr. Tucci's current assessment of the matter.
Because plaintiff is entitled to any medical treatment reasonably expected to effect a cure or give relief to plaintiff's neck and shoulder pain, because Dr. Tucci has maintained that there is nothing more he can do to help plaintiff, and because plaintiff's family physician has recommended that plaintiff be seen by another neurosurgeon other than Dr. Tucci, I believe that plaintiff is entitled at theleast to a second opinion regarding whether further diagnostic testing might be useful in assisting plaintiff with his neck and shoulder pain. Whether defendants should be required to pay for such further diagnostic testing would naturally depend upon the outcome of such a second opinion.
For these reasons, I respectfully dissent.
This 12th day of September, 2006.
S/_________________ THOMAS J. BOLCH COMMISSIONER