Perkins v. Broughton Hospital, 71 N.C. App. 275

Perkins v. Broughton Hospital

71 N.C. App. 275 | N.C. Ct. App. | 1984

PHILLIPS, Judge.

This appeal has no business being here for two reasons. First, it is dismissable as a fragmentary and premature appeal from an interlocutory order that concerns only an interim period of disability and leaves unlitigated the other issues in the case. G.S. 7A-29; Vaughn v. North Carolina Dept. of Human Resources, 37 N.C. App. 86, 245 S.E. 2d 892 (1978), aff'd, 296 N.C. 683, 252 S.E. 2d 792 (1979). And, second, the appeal has no plausible legal or evidentiary basis. Rather than dismiss the appeal, however, we prefer to adjudicate the two contentions that defendant makes herein, as it would be unjust to require plaintiff to face them again later.

The defendant’s first contention is that under the provisions of G.S. 97-25 plaintiff is barred from receiving further benefits under the Act because she refused to undergo the myelogram that its doctor recommended. In pertinent part, G.S. 97-25 provides that “the refusal of the employee to accept any medical, hospital, surgical or other treatment or rehabilitative procedure when ordered by the Industrial Commission shall bar said employee from further compensation.” (Emphasis supplied.) Thus, it is quite plain that though an employee’s refusal to accept prescribed medical treatment can bar the employee from further compensation, it does so only if the treatment has been ordered *278by the Industrial Commission. And in this case it is crystal clear that the Industrial Commission has not ordered plaintiff to do anything. To supply this deficiency defendant argues that its application for permission to stop the payments was tantamount to a motion for an order directing plaintiff to accept the recommended myelogram and that the Industrial Commission’s letter permitting defendant to stop the payments “until plaintiff accepts further treatment” was tantamount to the order supposedly requested. But since the word myelogram does not appear in either the application or form letter, how could we possibly hold that these two papers between them somehow constituted an order directing plaintiff to submit to a myelogram? Orders requiring litigants to do specific things are not created by such indirection and substitution; they are created by courts and commissions issuing directives that explicitly inform parties what is required of them. And, in this instance, since defendant neither applied for nor obtained an order directing plaintiff to submit to a myelo-gram, but merely obtained permission to stop paying until plaintiff accepted “further treatment” of some undesignated nature and extent, no basis whatever exists for defendant’s claim that plaintiffs rights to compensation were barred by her failure or refusal to accept the treatment involved. It is also clear, as the Commission found upon competent evidence, that plaintiff had not refused the recommended myelogram, though she knew myelo-grams were not without danger and admittedly did not want to undergo one unless necessary, but was merely in the process of obtaining a second opinion, which was both sensible and within her right, when defendant refused to pay for it.

Defendant’s other contention, that the Commission’s finding that plaintiff is still temporarily and totally disabled is unsupported by the evidence because no expert testified to that effect, is of no more substance. Actually, the issue agreed to by the parties was not whether plaintiff was still disabled, but “were temporary total disability payments due between April 19, 1982, and the date of this hearing.” Since defendant had already agreed to resume the payments that day, acknowledging thereby that plaintiff was still disabled, it would seem that the parties understood that plaintiffs condition was not then in issue and whether the payments were due depended entirely upon whether she had refused the treatment as alleged. Nevertheless, the Commission *279found that plaintiff was still disabled and there was evidence to that effect. Though nearly all of plaintiffs testimony was about the recommended myelogram, she also testified that though better than she was the first few weeks after the injury when she was able to get around only on crutches, she still had trouble getting out of bed, still had pain running down the back of both legs, and still was able to stay up only about four hours or so at a time without having to sit or lie down. This testimony was competent and adequately supports the finding made. While some human conditions can only be testified to by medical experts, the one involved in this case is not one of them. The ordinary person knows, without having to consult a medical expert, when it is necessary to lie down and rest because his or her own body is tired, exhausted, or in pain, and the law has no inhibition against testimony to that effect. The credibility and weight of plaintiffs testimony was for the Commission to decide, not us. Crawford v. Central Bonded Warehouse, 263 N.C. 826, 140 S.E. 2d 548 (1965). Furthermore, the determination that plaintiff is still disabled is also supported to some extent by the recommendation of defendant’s doctor that she undergo a lumbar myelogram, since it is well known that responsible doctors do not make such recommendations to those whose backs are not significantly impaired.

Affirmed.

Judges Hedrick and Becton concur.