74 N.C. App. 432 | N.C. Ct. App. | 1985
Lead Opinion
We decide two issues. First, that Chairman Stephenson was without statutory authority to suspend plaintiffs compensation payments for plaintiffs failure to sign the Industrial Commission Form 21, and therefore the Commission’s conclusion that plaintiff was not entitled to compensation for that reason was in error. Second, plaintiff was not entitled to compensation during the period of time he refused to submit to the examinations requested by defendants’ physician Dr. Caughran.
We are unable to find any provision in Chapter 97 of the General Statutes of North Carolina, the Workers’ Compensation Act, which would allow the Chairman of the Commission, or the Full Commission to suspend compensation to which a worker would otherwise be entitled for the worker’s failure to sign an Industrial Commission Form 21.
On the other hand, the provisions of N.C. Gen. Stat. § 97-27 (a), in pertinent part, are quite explicit as to the requirement for a
After an injury, and so long as he claims compensation, the employee, if so requested by his employer or ordered by the Industrial Commission, shall . . . submit himself to examination, at reasonable times and places, by a duly qualified physician or surgeon designated and paid by the employer or the Industrial Commission. ... If the employee refuses to submit himself to or in any way obstructs such examination requested by and provided for by the employer, his right to compensation and his right to take or prosecute any proceedings under this Article shall be suspended until such refusal or objection ceases, and no compensation shall at any time be payable for the period of obstruction, unless in the opinion of the Industrial Commission the circumstances justify the refusal or obstruction. . . .
We hold that the statute required that plaintiff undergo the diagnostic tests requested by Dr. Caughran, or, in the alternative, request the Commission to find such test to be not reasonable, in which case the Commission would be required to decide the matter. Plaintiff did neither, but simply unilaterally refused the tests. Plaintiff was therefore not entitled to compensation for the period 27 August 1981, when he refused the tests, until 15 March 1982, when he submitted to further examination by Dr. Caughran.
In summary, plaintiff was erroneously denied compensation between 15 March 1982 and 1 April 1982, but received compensation to which he was not entitled between 27 August 1981 and 18 November 1981. Under these circumstances, plaintiff has not been prejudiced by the Commission’s order, and it is therefore
Affirmed.
Dissenting Opinion
dissenting.
The decision of the majority, which approves the forfeiture of substantial disability benefits due plaintiff, is erroneous for two reasons in my opinion and I dissent from it.
First, G.S. 97-27(a) in express terms authorizes the suspension of benefits only when the claimant refuses to submit himself for an examination by defendants’ doctor and the Commission’s findings show that plaintiff did not refuse to submit himself for examination, but promptly and cooperatively submitted himself for examination and Dr. Caughran conducted a complete physical and neurological examination. What plaintiff did not submit to, as the Commission’s findings also show, was the administration of a myelogram and other diagnostic procedures upon his body; procedures that are beyond the scope of an examination, in my opinion, and thus not within the purview of the statutory language. A myelogram is the making of an X-ray record of the spinal cord, an internal structure of the body; it requires hospitalization, involves injecting a contrast dye between the delicate membranes which cover the spinal cord, is very painful, and entails some risk of great harm to the patient. In my view the legislature has not required employees to submit to this procedure at the mere request of their employers and the Commission was not authorized to suspend plaintiffs benefits when he refused. A majority of courts in this country interpreting similar statutes have reached the same conclusion “because of the graver character of the procedure involved.” 1 Larson, Workmen’s Compensation Law § 13.22(c) (1985). Another reason, I think, for not interpreting G.S. 97-27(a) as broadly as the majority does is that the law does not favor forfeitures.
Second, even if a myelogram is deemed to be an examination under the authority of the statute, instead of the invasive procedure that it really is, the Commission’s failure to award benefits to plaintiff for the period involved was still erroneous. The statute expressly permits uncooperative or obstructive employees to receive compensation for the period of the refusal or obstruction when in the opinion of the Commission “the circumstances justify the refusal or obstruction,” and under the record in this case no other rational opinion is possible, I believe, than that plaintiffs refusal to submit to the procedure was justified by the
My vote, therefore, is to reverse the Commission’s decision denying plaintiff temporary total disability benefits for the period involved and to remand the case to the Industrial Commission for the entry of a decision awarding the plaintiff such benefits.
