23731114.doc

NORTH CAROLINA INDUSTRIAL COMMISSION
I.C. NO. 23-731114, allison RENEE williams, Employee, Plaintiff v. positive step, inc., Employer, national liability & fire insurance company, Carrier, Defendants.
OPINION AND AWARD for the Full Commission by PHILIP A. BADDOUR, III, Chair.
Filed: July 23, 2026
This case was heard before the Full Commission on January 8, 2026, upon Plaintiff's appeal of the August 15, 2025, Opinion and Award filed by Deputy Commissioner Wes Saunders.  The deposition transcripts of Tonya Archer, FNP, Stuart Lee, M.D., and Cary Idler, M.D., are part of the evidence of record.
A P P E A R A N C E S
Plaintiff:	Hardison & Cochran, PLLC, Raleigh, North Carolina;
Benjamin T. Cochran, appearing.
Defendants:	Teague Campbell Dennis & Gorham, Raleigh, North Carolina; 
	Kyla Block, appearing.
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The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Saunders, Plaintiff's Form 44 Application for Review, and the briefs and arguments of the parties.  The Full Commission hereby enters the following Opinion and Award pursuant to N.C. Gen. Stat. § 97-85:
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The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties as:
STIPULATIONS
All parties are properly before the Industrial Commission, and the Commission has jurisdiction over the parties and of the subject matter.
All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder of parties.
The parties were subject to the Workers' Compensation Act at the time of the compensable injury by accident.
An employer/employee relationship existed between the parties at the time of the compensable injury by accident.
The employer in this case is Positive Step, Inc., and the carrier and/or claims administrator liable on the risk is National Liability & Fire Insurance Company.
The employee sustained an injury or began missing work from a compensable injury by accident on or about June 12, 2023.
The employee's average weekly wage is $358.40, which yields a compensation rate of $238.94, as evidenced by the Form 22.
The nature of the compensable injury is a low back injury.
The employee last worked for Positive Step, Inc., on June 12, 2023.
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The following were entered into evidence by the Deputy Commissioner as:
EXHIBITS
Stipulated Exhibit #1 - Executed Pre-Trial Agreement; and
Stipulated Exhibit #2 - Copy of Pre-Trial Agreement, Industrial Commission forms and filings, medical records, and discovery responses.
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	The Full Commission addresses the following:
ISSUE
Are Defendants responsible for the medical bills Plaintiff incurred for the unauthorized treatment of her low back injury, including but not limited to the implantation of a spinal cord stimulator? 
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Based upon the preponderance of the evidence in view of the entire record and reasonable inferences flowing therefrom, the Full Commission makes the following:
FINDINGS OF FACT
Plaintiff, who is 55 years old, was hired by Defendant-Employer as a certified nursing assistant ("CNA") in 2017.  As a CNA, Plaintiff provided in-home personal care to clients, including help with light household duties, meal preparation, washing clothes, and running errands.
In 2015, prior to the injury giving rise to this claim, Plaintiff had a large disc protrusion at L5-L6 that caused lower back pain going down into her hip and left leg.  In October 2015, Plaintiff underwent a laminectomy with Stuart Lee, M.D., to remove the protrusion.  Plaintiff did well following the surgery and was released from care shortly thereafter. 
On June 12, 2023, Plaintiff sustained an admittedly compensable injury to her lower back while working with a client.  Plaintiff was attempting to assist the client to an upright position when the client unexpectedly pulled down on her, causing Plaintiff to experience sharp pain in her lower back, which radiated down her left leg to her foot.
On June 12, 2023, Plaintiff presented to her primary care provider, Aulander Medical Practice, where she was seen by Laurie Nilsen, FNP.  Plaintiff reported that she had fallen the prior week and then fell again that day when she stepped out of her vehicle after working with a patient.  Ms. Nilsen noted that Plaintiff had limited range of motion in her lower back, edema in her extremities, and increased pain with palpation or movement.  Ms. Nilsen diagnosed Plaintiff with a low back strain, prescribed naproxen, and referred Plaintiff for an evaluation with an orthopedic surgeon.
On June 15, 2023, Plaintiff returned to Aulander Medical Practice, where she was evaluated by Tonya Archer, FNP.  Plaintiff reported that she had hurt her back assisting a patient at work and was continuing to experience lower back pain radiating down her left leg.  An x-ray of Plaintiff's lumbar spine showed transitional lumbosacral anatomy with a rudimentary S1-S2 disc, L5-S1 degenerative disc and endplate changes, and L4-L5 mild degenerative change with retrolisthesis.  Ms. Archer prescribed cyclobenzaprine and wrote Plaintiff out of work from June 12, 2023, to July 10, 2023.
On July 5, 2023, Plaintiff returned to Ms. Archer and reported that her swelling had gone down, but she was still experiencing 8.5/10 pain.  Plaintiff told Ms. Archer that it felt as though something was shifting in her back when she walked and that her back pain was radiating to her left hip and down her left leg into her groin.  Ms. Archer referred Plaintiff for physical therapy and wrote Plaintiff out of work until July 26, 2023.
On July 11, 2023, Plaintiff was seen by Timothy Gates, M.D., a neurosurgeon with ECU Health Neurosurgery.  Plaintiff described left lumbar spine pain with radiation down the left leg to the lateral aspect of her left foot.  After a physical examination, Dr. Gates diagnosed Plaintiff with a left S1 radiculopathy and recommended an MRI.  Plaintiff asked Dr. Gates to refer her to Dr. Lee, who previously had treated her in 2015 and 2016.
On August 24, 2023, Defendants filed a Form 63, Section 1, Notice to Employee of Payment of Compensation Without Prejudice or Payment of Medical Benefits Only Without Prejudice, admitting liability for Plaintiff's low back injury and initiating payment of temporary total disability benefits beginning June 12, 2023. 
Defendants authorized Plaintiff's treatment with Stuart Lee, M.D, a neurosurgeon with Vidant Neurosurgery.  On September 13, 2023, Plaintiff presented to Dr. Lee, who noted that the MRI showed post-operative changes from his prior surgery and no evidence of recurrent disc herniation at the prior surgery level or disc herniation or nerve root compression at any other level.  Dr. Lee saw nothing on the MRI that would warrant additional surgery, but because Plaintiff's 2015 disc protrusion was not visible on MRI, he recommended an updated lumbar myelogram and post-myelogram CT scan.
On September 28, 2023, Plaintiff underwent a myelogram and post-myelogram CT scan of her lumbar spine.  She returned to Dr. Lee on October 4, 2023, who reviewed the diagnostic studies and observed a slight residual disc bulge that was nothing like the pre-operative study in 2015.  Plaintiff's neurosurgical examination was non-focal, with the exception of positive straight leg raising on the left and give-way weakness due to pain on the left side.  Dr. Lee obtained x-rays of Plaintiff's left hip and pelvis, because pain in these locations can sometimes mimic nerve pain, and these were normal.  Dr. Lee did not see anything that would warrant surgery or that would explain her severe left leg pain.  Because Dr. Lee could not explain Plaintiff's symptoms from the multiple scans that had been done, he recommended that Plaintiff undergo electrical studies prior to proceeding with a pain management referral.
On October 11, 2023, Defendants authorized a second opinion evaluation with Scott Reeg, M.D., with Duke Orthopedics of Knightdale, but Dr. Reeg declined to see Plaintiff.
Electrical studies were conducted on October 25, 2023, and these showed no evidence of left lumbar radiculopathy or peripheral neuropathy.  On November 15, 2023, Plaintiff returned to Dr. Lee, who advised Plaintiff that there was no obvious etiology of her pain and that both the myelogram and CT scan showed no evidence of nerve root compression. Plaintiff voiced her frustration with Dr. Lee and explained that while she did not necessarily want surgery, she did want to understand what was causing her pain.  Dr. Lee reminded Plaintiff that two neurosurgeons - he and Dr. Gates - could not explain the pain she was having in her left leg and low back and offered to refer her to pain management with Matt Wilson, M.D.  Plaintiff declined because she wanted a "definitive answer."  Dr. Lee then offered a referral to Minji Kim, M.D., a neuromuscular neurologist, but advised that he could not guarantee Dr. Kim would find the etiology of her pain.  Dr. Lee testified that one reason he made the referral to Dr. Kim was because if Dr. Kim also did not find anything, it might help Plaintiff realize that there is not an obvious explanation for her pain.  Plaintiff told Dr. Lee she was willing to see Dr. Kim, so the referral was made and authorization sought from Defendants.  In November 2023, Defendants scheduled an appointment for Plaintiff with Dr. Kim for April 8, 2024. 
On November 28, 2023, Plaintiff filed a Motion to Transfer Care seeking authorization to transfer her medical treatment to Lindsey Tyler, M.D., a neurosurgeon with UNC Neurosurgery.  In support of Motion, Plaintiff alleged that Defendants had failed to authorize treatment but failed to acknowledge that Defendants had authorized treatment with Dr. Gates and Dr. Lee, multiple diagnostic studies, a second opinion with Dr. Reeg, and an evaluation with Dr. Kim.  On December 11, 2023, Special Deputy Commissioner Michael Kelly entered an Order denying Plaintiff's Motion to Transfer Care.
On the same day, Plaintiff, by and through her former counsel, Kevin Jones, filed a Form 33, Request that Claim be Assigned for Hearing, appealing the administrative order of Special Deputy Commissioner Kelly.  There is no record of Plaintiff requesting a stay of the December 11, 2023, Order.
Plaintiff testified at hearing that after her Motion to Transfer Care was denied, she was advised by Mr. Jones to seek treatment on her own health insurance.  However, shortly thereafter, Mr. Jones filed a Motion to Withdraw as Counsel for Plaintiff, which was granted by the Commission on January 11, 2024.  Plaintiff retained attorney Robert Boneau of the King Law Firm to represent her.  Plaintiff testified at the hearing that Mr. Boneau told her that because her claim was accepted, she needed to allow Defendants to direct her care.  According to Plaintiff, Mr. Boneau told her that "[y]ou need to hold off [on unauthorized treatment] if you expect them to pay for this."
Notwithstanding the prior Order of the Commission and the advice of Mr.  Boneau, Plaintiff presented without authorization to Juliette Beristain, PA-C, with the Jordan Young Institute in Virginia Beach, Virginia on January 23, 2024.  Plaintiff gave Ms. Beristain a history of work-related injury followed by severe pain in her lower back and left leg.  Plaintiff told Ms. Beristain that she had been evaluated by two neurosurgeons and was particularly unhappy with the previous electrical studies, which had not identified a clear source for her leg pain.  Ms. Beristain noted that in 2018, Plaintiff had undergone treatment with a Dr. Mitchell, who had recommended a spinal cord stimulator to manage her chronic pain. From her review of the MRI and CT scans, Ms. Beristain determined that Plaintiff had Bertolotti syndrome (a congenital condition that causes lower back and leg pain) and left S1-S2 pseudo-articulation, but no evidence of a large recurrent disc herniation or neural compression that could explain her pain complaints.  Nonetheless, Ms. Beristain recommended that Plaintiff undergo a repeat EMG and nerve conduction study.  Plaintiff did not request authorization from Defendants or seek approval of the Industrial Commission for treatment and testing with Ms. Beristain.
Without authorization or notification to Defendants, and without obtaining prior approval from the Industrial Commission, Plaintiff presented to Oren Gottfried, M.D., a neurosurgeon with Duke Health on March 1, 2024.  Dr. Gottfried recommended that Plaintiff undergo a nerve study of the left leg to assess acute versus chronic radicular issues, a left L4-L5 epidural steroid injection, and a CT Single Photon Emission Computer Tomograph ("SPECT") scan to evaluate any metabolic activity in Plaintiff's spine.  Dr. Gottfried discussed other potential options for Plaintiff's treatment, including a referral to pain management for a spinal cord stimulator.
On March 8, 2024, Plaintiff underwent a nerve conduction study and EMG at Duke Neurology.  Both studies were normal but limited, with no definite evidence of an active left L2-S1 radiculopathy.  On March 22, 2024, Plaintiff underwent a left L4-L5 transforaminal epidural injection with Gloria Liu, M.D., a physiatrist with Duke Health.
Plaintiff returned to Dr. Gottfried on March 29, 2024.  Dr. Gottfried did not see any dynamic instability or severe stenosis after reviewing Plaintiff's test results.  Dr. Gottfried did note the presence of a disc base collapse and that the CT SPECT showed metabolic activity at two levels, but the nerve study did not show any acute or chronic nerve damage.   Dr. Gottfried did not see anything that would warrant a stabilization or decompression procedure.   He opined that the option most likely to help Plaintiff would be a spinal cord stimulator implant for which he referred Plaintiff to Gabriel Smith, M.D., a pain management provider.
Plaintiff did not seek approval from Defendants or the Industrial Commission for any treatment related to the recommended spinal cord stimulator or her other treatment with Duke Health.  
On April 8, 2024, Plaintiff attended the evaluation scheduled by Defendants with Dr. Kim at ECU Neurology.  On the way to the evaluation, Plaintiff was notified by ECU Neurology that Dr. Kim was not available for her evaluation and advised that Plaintiff would see Dr. Frere.  Records from this evaluation are not in the record, although a letter from ECU Neurology dated April 8, 2024, indicates that Dr. Frere determined that a new EMG was not needed.
On May 28, 2024, Plaintiff underwent an unauthorized evaluation with Gabriel Smith, M.D., with Duke Health Pain Management.  Dr. Smith's impression, after reviewing Plaintiff's "previous imaging/pertinent studies," was "[n]o diagnosis found."  Dr. Smith opined that Plaintiff's pain was "possibly multifactorial," and that "[t]here may be a discogenic component as well with myofascial overlay."  Dr. Smith offered Plaintiff a comprehensive pain plan consisting of medication, injections, a spinal cord stimulator, physical therapy, and cognitive behavioral therapy.
On June 11, 2024, Plaintiff's counsel, Mr. Boneau, moved to withdraw as counsel of record and also moved to withdraw the Form 33, Request for Hearing, that had been filed to appeal the denial of Plaintiff's motion to transfer treatment.  Deputy Commissioner Saunders granted both motions by Order filed June 17, 2024.  By withdrawing her request for hearing, Plaintiff abandoned her appeal of the December 11, 2023, Order denying Plaintiff's request to change treating providers.  
On June 20, 2024, Plaintiff hired her current counsel, Hardison and Cochran.  On August 21, 2024, Plaintiff, by and through counsel, filed a Form 33, Request That Claim Be Assigned For Hearing.  The stated reason for the hearing request was, "Plaintiff is entitled to additional benefits."
On July 27, 2024, Plaintiff underwent an MRI of her thoracic spine with Duke Health.  The MRI showed no significant spinal canal or foraminal stenosis in the thoracic spine.
On September 9, 2024, after a brief, failed course of physical therapy at ECU Health-Bertie, Plaintiff underwent a spinal cord stimulator trial procedure with Dr. Smith at Duke Health.  Dr. Smith's diagnosis on the treatment note was "failed back surgical syndrome."
On September 12, 2024, Plaintiff presented for an evaluation with Cary Idler, M.D., at Bone and Joint Surgery Clinic, LLP.  Dr. Idler reported that Plaintiff had undergone a successful trial of the spinal cord stimulator with 50% improvement in her symptoms.  Plaintiff reported that she had been more active since having the trial stimulator installed, but was still having symptoms of burning, numbness, tingling sensations, and sharp shooting pains in her left leg greater than her right, along with bilateral weakness.  Dr. Idler discussed Plaintiff's treatment options and opined that Plaintiff was an appropriate candidate for a thoracic laminectomy for a permanent spinal cord stimulator placement.  On September 30, 2024, Dr. Idler performed the thoracic laminectomy and spinal cord stimulator placement procedure.
On November 1, 2024, FNP Archer with the Aulander Medical Practice wrote that Plaintiff has a spinal cord stimulator in place, and she is still in pain.
As of the date of the hearing, Plaintiff was using a rolling walker to assist with ambulation, a practice she began after the work-related injury.  Plaintiff has used the walker less since having the spinal cord stimulator implanted, and although Plaintiff prefers standing over sitting to relieve pressure on her hips, this also has improved with the spinal cord stimulator.  Overall, the stimulator has reduced Plaintiff's pain but has not improved her left leg weakness.
Dr. Idler, a board-certified orthopedic surgeon and expert in the field of orthopedic surgery testified by deposition.  Dr. Idler testified that placement of a spinal cord stimulator is the option of last resort after a patient has failed conservative treatment, including medications, physical therapy, and injections.  Dr. Idler opined to a reasonable degree of medical certainty that the stimulator implant Plaintiff received was reasonable and necessary to effect a cure and give relief. 
Dr. Lee, a board-certified neurosurgeon and expert in the field of neurosurgery testified by deposition.  Dr. Lee testified regarding Plaintiff's back surgery in October 2015, and Plaintiff's return to his office on September 13, 2023, with complaints of back pain going down the left leg.  Dr. Lee confirmed that neither he nor Dr. Gates saw anything that required surgery or that could be causing Plaintiff's pain.  Dr. Lee explained that a spinal cord stimulator trial is not typically a first-line treatment but may be appropriate when the source of a patient's pain cannot be clearly identified, as in Plaintiff's case.  He did not find it concerning that Plaintiff had not undergone injection therapy prior to the stimulator trial because there was no specific area in her spine to target with an epidural injection.  Dr. Lee agreed that Plaintiff was an appropriate candidate for a spinal cord stimulator in September 2024.
Ms. Archer, a nurse practitioner at Aulander Medical Practice, testified by deposition.  Ms. Archer is an expert nurse practitioner with a focus on family medicine.  Ms. Archer began treating Plaintiff in approximately 2020 while providing care under the direction of Seeman Khoury, M.D.  Prior to Plaintiff's June 12, 2023, work injury, Plaintiff was working, able to ambulate without a walker, and sit on the examination table during her appointments. After Plaintiff's June 12, 2023, work injury, Ms. Archer noted that Plaintiff required the use of a walker for her medical evaluations and had been unable to sit on examination tables or step up onto scales during her evaluations.  The last time Ms. Archer evaluated Plaintiff was October 30, 2024, one month after the installation of Plaintiff's spinal cord stimulator.  
Based upon a preponderance of the evidence in view of the entire record, the Full Commission finds that Plaintiff began an extensive course of unauthorized treatment with multiple providers beginning on January 23, 2024, when Plaintiff went to see Juliette Beristain, PA-C, at the Jordan Young Institute in Virginia Beach, and continuing on March 1, 2024, when she began treating at Duke Health.  After Plaintiff withdrew her Form 33, Request That Case Be Assigned For Hearing, to appeal the December 11, 2023, Order denying her Motion to Transfer Care, she took no other steps prior to hearing to obtain Industrial Commission approval of her unauthorized treatment and did not seek authorization from Defendants for such treatment.     
Based upon a preponderance of the evidence in view of the entire record, the Full Commission finds that Plaintiff's unauthorized medical treatment was not sought during an emergency or because Defendants failed to provide medical treatment.  In reaching this finding, the Full Commission considers that Defendants offered Plaintiff treatment with providers recommended by Dr. Lee, including pain management treatment, but Plaintiff refused to see those providers and instead chose, without authorization, to see doctors of her choosing.  In addition, the Full Commission finds that Plaintiff failed to show by a preponderance of the evidence that a change of physicians was reasonably necessary to effect a cure, give relief, or lessen the period of disability.  Finally, based upon a preponderance of the evidence in view of the entire record, the Full Commission finds that Plaintiff did not seek Industrial Commission approval for her unauthorized treatment within a reasonable time.   
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Based upon the preponderance of the evidence in view of the entire record and reasonable inferences flowing therefrom, the Full Commission makes the following:
CONCLUSIONS OF LAW
Plaintiff sustained an admittedly compensable injury by accident to her lower back for which Defendants accepted liability.  N.C. Gen. Stat. § 97-2(6) (2025).  
Generally, the employer has the right to direct medical treatment for an admittedly compensable work injury, which includes selection of the treating physician.  Kanipe v. Lane Upholstery, 141 N.C. App. 620, 623-24, 540 S.E. 2d 785, 788 (2000); Craven v. VF Corp., 167 N.C. App. 612, 616-17, 606 S.E.2d 160, 163 (2004).  When the employer exercises this right, the employee may not, without good cause, refuse services of the physician, surgeon, or hospital proffered him, or seek services of another.  Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980).
An employee may select his own physician if the employer fails to direct medical treatment in a prompt and adequate manner, in an emergency situation, or if approval of the unauthorized treatment is sought from the Industrial Commission within a reasonable time.  N.C. Gen. Stat. §§ 97-25(c); 97-25(e) (2025); Kanipe, 141 N.C. App. at 625-26, 540 S.E.2d at 789; Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 588-89, 264 S.E.2d 56, 61 (1980). The employee's request for approval may even be filed after the treatment has been procured, so long as the request is filed within a reasonable time thereafter.  Schofield, 299 N.C. at 592-93, 264 S.E.2d at 63.  To determine what is reasonable, our courts have found that the employer should be apprised of the fact that the employee has procured a doctor of her own choosing "as soon as practicable."  Id. 
Moreover, if the employee is dissatisfied with the care being offered by the employer, the employee may file a motion to change treating providers.  N.C. Gen. Stat. § 97-25(c) (2025).  N.C. Gen. Stat. § 97-25(c) requires that any change in provider be approved by the Industrial Commission and be shown to be "reasonably necessary to effect a cure, provide relief, or lessen the period of disability."  Id. 
In the present matter, the Full Commission concludes that Defendants did not fail to provide Plaintiff with timely and adequate medical treatment.  Since the onset of Plaintiff's injury, Defendants provided Plaintiff with appropriate medical treatment, even approving a second opinion with Dr. Lee, a provider with whom she treated prior to her work injury.  After Plaintiff declined Dr. Lee's referral to pain management, Defendants scheduled Plaintiff for a third neurological evaluation with Dr. Kim.  During the pendency of this April 2024, evaluation and thereafter, the record contains no indication that Plaintiff requested additional treatment through Defendants or that any treatment was denied or otherwise not timely provided.  Consequently, the Full Commission concludes that Plaintiff has failed to establish that she sought unauthorized treatment because of Defendants' failure to provide care. 
The Full Commission further concludes that none of the unauthorized treatment Plaintiff sought was obtained on an emergency basis.  While Plaintiff was experiencing pain and discomfort related to her compensable condition, there is no indication in the record that Defendants were unwilling or unable to offer Plaintiff any of the care that she sought on her own.  In fact, as concluded above, the record supports that Defendants were willingly and actively providing Plaintiff with additional treatment, but Plaintiff elected not to inform Defendants of her self-directed care. 
Finally, the Full Commission concludes that Plaintiff did not seek Industrial Commission approval for her unauthorized treatment within a reasonable time or as soon as practicable.  In the 251 days after Plaintiff's first unauthorized evaluation, Plaintiff had ample opportunities to request authorization from the Industrial Commission by filing another motion to transfer care, by requesting an expedited medical motion hearing, or by going forward with the hearing request that she had filed, but then withdrawn, to appeal the Commission's denial of her Motion to Transfer Care.  Plaintiff did not avail herself of any of these available remedies under the Workers' Compensation Act.  Finally, Plaintiff failed to show that a transfer of care was reasonably necessary to effect a cure, provide relief, or lessen the period of disability.  Defendants offered pain management treatment, and Plaintiff declined it to pursue medical treatment which she wanted to direct, to the exclusion of Defendants.   
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	Based upon the foregoing Stipulations, Findings of Fact, and Conclusions of Law, the Full Commission enters the following:
AWARD
Plaintiff's claim for medical compensation for the unauthorized medical treatment she received for her low back, including but not limited to the spinal cord stimulator, is hereby denied.
Defendants shall direct Plaintiff's ongoing medical treatment in accordance with the provisions of the Workers' Compensation Act.
Vice-Chair GRIFFIN and Commissioner TAYLOR concur. 

I.C. NO. 23-731114		Page 2