256930.doc

I.C. NO. 256930, DONALD L. JENKINS, Employee, Plaintiff v. FOOD LION, L.L.C., Employer, RISK MANAGEMENT SERVICES, INC., Administrator, Defendants. OPINION AND AWARD by JOHN B. DELUCA, Deputy Commissioner, N.C. Industrial Commission. Filed 21 November 2005.



	This workers' compensation case was heard before the undersigned on February 22, 2005, in Raleigh.  At the hearing, the parties submitted a Pre-Trial Agreement that contained certain stipulations and stipulated into evidence several exhibits, including three surveillance videotapes and accompanying investigative reports.  Following the hearing, the parties stipulated to 337 pages of medical records as well as a set of relevant pleadings and submitted copies of the same to the Commission.  The parties also deposed Dr. Robert Lacin and Dr. William F. Lestini and tendered transcripts thereof to the Commission.  The record is now closed and the case is ready for decision.
The objections raised by the parties at the depositions of the medical providers are ruled upon in accordance with the law and the Opinion and Award in this case.
A P P E A R A N C E S
	Plaintiff:	Brantley, Jenkins, Riddle, Hardee & Hardee, L.L.P., Attorneys at Law, Goldsboro, North Carolina; J. Christopher Brantley appearing.

	Defendants:	Robinson & Lawing, L.L.P., Attorneys, Winston-Salem, North Carolina; W. Mark Peck appearing.

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The undersigned finds as fact and concludes as a matter of law the following, which were entered by the parties as:
STIPULATIONS
1.	At all relevant times hereto, the parties were bound by and subject to the provisions of the North Carolina Workers' Compensation Act, Defendant-Employer regularly employing three or more employees.
2.	As of April 15, 2001, an employer-employee relationship existed between Plaintiff and Defendant-Employer.
3.	As of April 15, 2001, Defendant-Employer was a qualified self-insurer with Risk Management Services, Inc., acting as its administrator.
4.	On April 15, 2001, Plaintiff's average weekly wage, including overtime and all allowances, was $800.00, which resulted in a compensation rate of $533.36.
5.	By I.C. Form 60, Defendants admitted Plaintiff's right to receive compensation for injuries sustained to his low back on April 15, 2001.  The parties agree that Plaintiff has received all temporary total disability benefits to which he is entitled under the Act for all times that he was out of work.
6.	On or about March 24, 2003, Plaintiff returned to work for Defendant-Employer in a full-time position at an average weekly wage less than what he was earning on April 15, 2001.  Defendants thereafter and continuing have supplemented the employee's earnings through payment of partial disability benefits pursuant to N.C. Gen. Stat. §97-30.
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Based upon all of the competent evidence adduced from the record, the undersigned makes the following additional:
FINDINGS OF FACT
	1.	Plaintiff is 59 years old, with a date of birth of April 21, 1946.  He earned a high school diploma with additional college level study in accounting and business administration.  His work history includes employment as a supervisor for a textile manufacturer, rate clerk for a motor line company, and store manager for an auto parts retailer and a tire sales company.
	2.	Plaintiff began working for Defendant-Employer in March 1991, initially as a part-time grocery bagger.  Over the course of the next few years, he worked in several full-time positions, including positions as a cashier, produce department manager, and assistant store manager.  By late 1998, he attained a position as a store manager.
	3.	Since as early as November 1980, Plaintiff has received intermittent treatment for low back complaints through his primary care physician, Dr. A. Clarke Gaither.  During office visits in late 1980 and early 1981, he reported to Dr. Gaither low back pain radiating into his right leg, and Dr. Gaither treated him conservatively through prescription medication and low back exercises.  Throughout the 1980s, he continued to see Dr. Gaither for a number of ailments, and during an appointment in October 1989, he reported renewed left-sided back pain.  He received further treatment for his back in May and June 1990, after he injured it while lifting boxes, and treatment again in September 1993 after developing pain while reaching for an object hanging on a doorknob.
	4.	Plaintiff aggravated his back condition again in December 1994 following an incident with a shoplifter in which he was forced into a display case.  This incident is not the subject of Plaintiff's current claim for medical benefits.
	5.	Plaintiff experienced a new flare-up in his low back symptoms in August 1998 following another incident involving a shoplifter, after which he reported pain in his neck and low back.  Plaintiff filed a workers' compensation claim and this claim was assigned I.C. File No. 112830, and as with the 1994 claim, this claim is not the subject of Plaintiff's current request for medical treatment.  Following the incident, Plaintiff was seen by Dr. Gaither and diagnosed with cervical and lumbar strains.  When his symptoms continued into September 1998, Dr. Gaither referred him to neurosurgeon Dr. Robert Lacin for further evaluation and treatment.  During an initial examination on September 9, 1998, Plaintiff reported to Dr. Lacin symptoms of right upper extremity pain, but no specific symptoms relative to his low back.  However, at a follow-up appointment approximately two weeks later, Plaintiff noted pain in his low back, at which point Dr. Lacin ordered a lumbar MRI, the results of which showed degeneration of the L4-5 disc with a mid-central herniation.  Plaintiff received conservative treatment for this condition through physical therapy and by November 1998 he was working full time in his store manager position, working ten hours a day, five to six days a week.
	6.	After working for approximately one month, Plaintiff returned to Dr. Gaither in December 1998 complaining of neck, back and arm pain and that he was having difficulty sleeping.  Dr. Gaither referred him for another course of physical therapy, but when Plaintiff reported no improvement in his low back symptoms, a return appointment was scheduled with Dr. Lacin for January 6, 1999.  In the interim, he experienced another flare-up in his back symptoms during the Christmas holiday when he was reaching overhead for some bottles of champagne.  At Dr. Lacin's recommendation, Plaintiff underwent a lumbar discogram and Dr. Lacin suggested that Plaintiff limit his work to eight hours a day.  The discogram returned positive at the L4-5 level, and based on these results, Dr. Lacin presented Plaintiff with several different options, including changing his job, altering his activity level, trying additional conservative treatment measures or possibly undergoing an interbody fusion procedure at L4-5.  Plaintiff informed Dr. Lacin that he wished to proceed with surgery; however, after Plaintiff was seen in consultation by orthopedic surgeon, Dr. Hector M. Pezdra, Dr. Lacin determined that Plaintiff's degenerative condition had not deteriorated to such an extent as to warrant surgery.  The doctor, thereafter, recommended that Plaintiff use a back brace while working, and that if his symptoms did not improve by the summer, that he return for another surgical consultation.
	7.	In April 1999, Plaintiff received a second opinion regarding his low back condition from orthopedic surgeon Dr. William F. Lestini.  Dr. Lestini concurred with the recommendations of Dr. Lacin and Dr. Pezdra, specifically that while Plaintiff diagnostically could be considered a surgical candidate, at that time he was not a good candidate for a fusion procedure, given that his disc space at L4-5 had not collapsed significantly.  Dr. Lestini recommended that Plaintiff proceed with a more aggressive course of physical therapy and that if his symptoms did not improve, he consider a less invasive IDET procedure.
	8.	When Plaintiff's symptoms did not improve with physical therapy, he underwent an IDET procedure at the L4-5 level on June 16, 1999.  An IDET procedure is one wherein a needle is inserted into the disc and then heated electrically.  Thereafter, he treated through Dr. Lestini and on January 10, 2000, he participated in a Functional Capacity Assessment ("FCA"), the results of which showed that he could work at a Medium demand level.  Following an office visit the next day, Dr. Lestini determined that Plaintiff had reached maximum medical improvement and he released Plaintiff from his care, recommending that Plaintiff limit his work to the restrictions outlined in the FCA.
	9.	For the next two months, Plaintiff continued working in his store manager position, eight hours a day, five days a week, during which time he did not seek any further treatment for his low back from Drs. Gaither, Lacin or Lestini.  In early March 2000, he experienced another flare-up in his low back pain, which occurred while he was at work one day doing nothing particularly strenuous.  On this occasion, Plaintiff first received treatment at the Carolina Back Institute from Dr. Scott S. Sanitate, who following a March 7, 2000 office visit, opined that he had no specific treatment recommendations other than that Plaintiff use prescription medications for flare-ups and that he continue to abide by the work restrictions assigned by Dr. Lestini.  Plaintiff treated with Dr. Sanitate through June 2000 and was also evaluated by Dr. Lacin's partner, Dr. Barry I. Katz.  Dr. Katz also did not make any specific treatment recommendations, and at Plaintiff's request, Dr. Katz referred him back to Dr. Lestini for further evaluation.
	10.	Plaintiff returned to Dr. Lestini on June 26, 2000, and upon Dr. Lestini's recommendation, a repeat lumbar MRI was performed on July 6, 2000, the results of which showed no significant changes from the previous MRI. Because there was no indication of further collapse in the L4-5 disc space, Dr. Lestini once again noted that Plaintiff was not a good candidate for surgical intervention, and the only further recommendation that he gave was that Plaintiff limit his work to eight hours a day, five days a week and his lifting to no more than 30 pounds.
	11.	During August and into September 2000, Plaintiff continued working in his store manager position, and at an August 28, 2000 visit with Dr. Gaither he reported ongoing low back pain.  A lumbar discography, performed September 5, 2000, showed an internal derangement at L4-5 with posterior fissuring and annular leaking posteriorly.  He returned to Dr. Lestini on September 26, 2000, and Dr. Lestini noted that the discography results were consistent with the previous MRI studies and once again opined that Plaintiff was not a good surgical candidate. Nevertheless, given Plaintiff's pain complaints, Dr. Lestini recommended that Plaintiff consider enrolling in a work hardening program and that he limit his work while attending such a program.
	12.	In October 2000, Plaintiff was evaluated for a comprehensive pain management program at the Carolina Back Institute.  He began the program in late November 2000, and for the next four weeks he participated in several physical therapy sessions and received weekly consultations with a pain management specialist and a rehabilitation psychologist.  He continued working for Defendant-Employer as a store manager, working approximately five to seven hours per day; however, due to the amount of time required for the pain management program, as well as Dr. Lestini's recommendations, he was not assigned to one particular store.  He completed the program on December 21, 2000, at which time his treating physician, Dr. Catherine A. Lawrence, recommended a gradual return to work, beginning with 35 hours per week and increasing up to 50 hours.  She further recommended a series of home-based exercises and that Plaintiff follow up with her and his psychological therapist on a bi-monthly basis.  Plaintiff followed this regimen from January through March 2001 by which time he was working as a store manager approximately 32 to 38 hours per week.
	13.	On Easter Sunday, April 15, 2001, Plaintiff experienced another compensable injury to his back when he was managing a store in Selma and while reducing the pricing on some Easter candy, he slipped on a plastic lid and fell to the floor.  He worked the remainder of his shift, as well as the next day, but when his low back pain continued into the following day, he sought treatment at Urgent Medical Care of Smithfield.  Lumbar x-rays were taken which returned negative, and the treating physician diagnosed a lumbosacral strain.  During a follow up appointment on April 19, 2001, Plaintiff informed the treating physician that he had been treating previously at the Carolina Back Institute, and the provider referred him back to that facility for further evaluation and treatment.
	14.	Plaintiff was seen by Dr. Lawrence on April 25, 2001, at which time he described the April 15 incident and reported low back pain similar to the pain he had experienced in the past.  Following a physical examination, Dr. Lawrence diagnosed an exacerbation of low back pain secondary to the April 15 incident and she removed Plaintiff from work for approximately one week, recommending treatment through prescription pain medications and another course of physical therapy.
	15.	Plaintiff began physical therapy on May 2, 2001, and he returned in follow up to Dr. Lawrence on May 3, 2001.  At this visit, he reported no improvement in his symptoms; nonetheless, Dr. Lawrence recommended that he return to light duty work effective May 7, 2001, with a 10 pound lifting restriction, four hours per day. Defendant-Employer accommodated these restrictions by first allowing Plaintiff for a brief period of time to perform work while at home, and then beginning on May 21, 2001, by working as a store manager at a small volume store, approximately five hours a day.
	16.	Plaintiff returned to Dr. Lawrence on May 17, 2001, reporting an increase in his back pain, at which point Dr. Lawrence recommended a repeat lumbar MRI to rule out a possible herniated disc.  She also referred Plaintiff for a surgical evaluation to be performed by her partner, Dr. James S. Fulghum.  The MRI, conducted on May 24, 2001, showed no significant changes compared to the MRI studies performed prior to the April 15, 2001 incident.  Dr. Fulghum provided a surgical consult on June 8, 2001, and based on the MRI results, as well as his physical examination of Plaintiff, he opined that Plaintiff was not a surgical candidate.  Dr. Fulghum also noted that compared to the last MRI taken in July 2000, the more recent MRI had shown some improvement at the L4-5 level.
	17.	Throughout June and July 2001, Plaintiff remained working four to five hours per day in a store manager position, and was seen on two more occasions by Dr. Lawrence.  At the same time, he was also treating with a rheumatologist for non-work-related psoriasis and arthritis, and he continued to see Dr. Gaither for routine physical examinations.  During an office visit with Dr. Lawrence on July 12, 2001, he complained of low back and neck pain with left shoulder pain radiating into his left upper extremity along with numbness in his left hand, and Dr. Lawrence ordered a cervical MRI and EMG/Nerve Conduction Studies.  A follow-up appointment was scheduled for approximately two weeks later; however, there is no evidence showing that Plaintiff received any further treatment from Dr. Lawrence or from any other provider at the Carolina Back Institute after July 12, 2001.  Plaintiff, however, did see Dr. Gaither on July 20, 2001, and in the office note for that visit Dr. Gaither recorded "no new back symptoms to report."
	18.	Plaintiff was seen by Dr. Lacin on August 6, 2001, complaining of left sided chest pain radiating into his left upper extremity.  Despite having been seen by Dr. Lacin previously for his back condition, Plaintiff did not mention any pain or discomfort in his back; nor did he inform Dr. Lacin of the incident occurring on April 15, 2001.  Dr. Lacin ordered a cervical CT scan, and when the results of the scan revealed an osteophyte at the C4-5 level with foraminal stenosis, Dr. Lacin removed Plaintiff from work.  On August 30, 2001, Plaintiff underwent a C4-5 anterior discectomy and interbody fusion.
	19.	Following surgery, Plaintiff treated post-operatively through Dr. Lacin.  From September 1, 2001 through October 10, 2001, he saw Dr. Lacin on at least two occasions, and once again he did not report to Dr. Lacin that he was having any problems with his low back.  He next returned to Dr. Lacin on October 24, 2001, and this time he indicated to Dr. Lacin that he was having some low back pain, but he made no reference to the April 15, 2001 incident.  Given what he knew regarding Plaintiff's history of low back problems, and based on the treatment recommendations he provided in 1999, Dr. Lacin discussed with Plaintiff that he did not believe that Plaintiff was a surgical candidate at that point, but that he may become one in the future.  Regarding Plaintiff's cervical condition, Dr. Lacin determined that Plaintiff had reached maximum medical improvement and he released Plaintiff to return to his store manager position.
	20.	Plaintiff returned to his store manager position, and during Thanksgiving 2001, he experienced another flare-up in his low back pain while attending a family gathering, as he was struck from behind by one of his sons and tackled to the ground.  He returned to Dr. Gaither, and Dr. Gaither diagnosed an acute muscular strain with spasm and provided Plaintiff with prescription medications and instructions to return if his symptoms did not improve.  Plaintiff did not return to Dr. Gaither until February 14, 2002, and up until that date he did not seek any additional treatment for his low back.  In fact, he contacted Dr. Lacin on December 17, 2001, to discuss his activity level and Dr. Lacin instructed him that basically he could do anything that he felt capable of doing.
	21.	During early 2002, Plaintiff remained in his store manager position, working between four and six hours per day.  In March 2002, he experienced a flare-up in neck pain accompanied with headaches.  Dr. Lacin saw plaintiff on March 18, 2002.  There was no discussion of any low back problems, and given the nature of Plaintiff's pain complaints and his history of cervical problems, Dr. Lacin ordered a cervical MRI, the results of which did not reveal any new pathology.  Dr. Lacin did not make any treatment recommendations.  Plaintiff contacted Dr. Gaither's office on April 1, 2002, reporting continued headaches, and an appointment was made for him to see neurologist Dr. Daniel Poole on May 8, 2002.
	22.	Plaintiff kept working, and when he continued to report symptoms in his neck and back, an appointment was made for him to be evaluated by Dr. Gary Smoot of Carolina Spine Specialist in Raleigh.  Dr. Smoot performed an initial evaluation on April 11, 2002, at which time Plaintiff reported the April 15, 2001 incident, but he did not inform Dr. Smoot of the November 2001 incident in which he was tackled to the ground.  During the evaluation, Plaintiff reported intermittent symptoms of back and neck pain which he allocated as "30 percent back and 70 percent neck," and further noted that his pain was worse with sitting, driving, standing and lifting, but better with changing positions.  Dr. Smoot performed a physical examination, following which he recommended that Plaintiff reduce his pain medications and continue exercise therapy.  In addition, because a question was raised regarding Plaintiff's physical limitations, Dr. Smoot recommended a Functional Capacity Evaluation (FCE).
	23.	Plaintiff participated in the FCE on May 3, 2002, at which time his functional capabilities were compared to the demands of his store manager position.  The results of the FCE were equivalent to the results of the FCA he participated in January 2000, specifically that he was capable of performing at a medium demand level of work for an eight hour day.  During the evaluation, Plaintiff met or exceeded his self-reported job demands, with the only exception being a 40-pound lifting requirement.
	24.	Plaintiff returned to Dr. Smoot on May 22, 2002, to discuss the results of the FCE, at which point he expressed some concern about being capable of working an eight hour day, noting that he felt that he was only capable of working a five hour day.  Given Plaintiff's concern, Dr. Smoot recommended that Plaintiff increase his work hours gradually, starting with six hours a day and working up to eight hours.  A disagreement arose regarding this recommendation and Plaintiff expressed his desire not to return to Dr. Smoot.
	25.	In late June 2002, the neurologist who was treating Plaintiff for headaches, referred Plaintiff to Goldsboro Physical Therapy and Rehabilitation for a physical therapy evaluation.  At an initial evaluation, Plaintiff reported that he was experiencing headaches with occasional left arm numbness, as well as back pain, but he made no reference to either the April 15, 2001 incident or the incident occurring later that same year in November.  The therapist recommended that Plaintiff participate in three sessions of therapy for three to four weeks.
	26.	Plaintiff participated in the physical therapy and, in the meantime, returned to Dr. Lestini's office for an evaluation.  Gary S. Tate, Dr. Lestini's assistant, saw him on July 17, 2002.  During the evaluation, Mr. Tate reviewed the history of treatment Plaintiff received since he had last treated with Dr. Lestini in September 2000, and once again Plaintiff made no mention of the April 15, 2001 or the November 2001 incidents.  Mr. Tate performed a physical exam and reviewed Plaintiff's diagnostic studies, after which he noted that while Plaintiff diagnostically could be considered a surgical candidate, given that there had been no further collapse of his L4-5 disc space, he was not a good surgical candidate.  He further recommended that Plaintiff continue with home-based exercises and there were no changes to the restrictions outlined in the FCE.  Dr. Lestini later reviewed Mr. Tate's report of the evaluation and concurred with the conclusions.
	27.	Plaintiff remained in physical therapy.  On August 9, 2002, he experienced another flare-up in his back condition when he was involved in another incident with some shoplifters, during which he was knocked to the floor.  Plaintiff did not file a workers' compensation claim in relation to this incident and there is no evidence that Defendants were aware before the hearing that Plaintiff sustained any injury as a result of this incident.  He continued working five to six hours a day and received physical therapy regularly at Goldsboro Physical Therapy.
	28.	Plaintiff returned to Dr. Lestini on September 19, 2002, complaining of persistent and progressive low back pain, and this time Dr. Lestini recommended further diagnostic study including a repeat lumbar discography.  On October 23, 2002, after reviewing the results of the discography, Dr. Lestini once again opined that Plaintiff was not a surgical candidate and released Plaintiff from his care, noting the following:
I do not see anything on this discogram that would allow us to plan any type of operative procedure to fix his residual pain.  Structurally speaking, I don't see anything that would keep the patient from actually doing his regular duty; however, there are some degenerative changes here and he has had some longstanding symptoms.  If he feels he could not do his regular duty, I would be willing to support job recommendations for changing his job on a permanent basis to his current light-duty position on a fulltime permanent basis.  He has already been given a 5% permanent partial impairment rating in the past [in September 2000] and this is not changed.

	29.	From October 2002 through January 2003, Plaintiff remained in physical therapy at Goldsboro Physical Therapy, based on referrals made by Dr. Poole.  He continued working in the store manager position through December 2002, when he underwent gallbladder removal surgery and was removed from work by his treating physician.
30.	By January 2003 Plaintiff had recovered from gall bladder surgery; however, Defendant-Employer was no longer able to keep him employed as a store manager.  Given the recommendations of Dr. Lestini, Plaintiff was offered a part-time position as a DSD "Vendor" receiver, and when Plaintiff expressed his concerned that as a part-time employee he would not be eligible for certain benefits, Defendant-Employer offered him a full-time position as a front end sales associate.  In the interim, Plaintiff returned to Dr. Lacin on January 29, 2003, for another evaluation of his low back and, once again, Dr. Lacin opined that he had no further treatment options and that Plaintiff was not a surgical candidate.
	31.	Dr. Lestini reviewed the essential job functions of the sales associate position and, upon his approval, Plaintiff started working in this position full time.  By the time of the hearing, he had transferred to a position as a full-time DSD "Vendor" receiver, a job wherein he monitors outside product vendors to make certain that the products being stocked match the appropriate invoice.  This job does not require Plaintiff to lift any products and in view of his store managing experience and knowledge of accounting, he often performs other managerial tasks for his store.  At the hearing, his store manager testified that she has worked with Plaintiff since July 2003 and, during that time, she has not noticed Plaintiff having any problems or difficulties performing his job and, in the year preceding the hearing, he has not missed any work due to medical treatment for his low back.
	32.	In May 2003, Plaintiff returned to Dr. Lestini reporting persistent and progressive pain in his low back.  He also informed Dr. Lestini that he had been working full time in the front-end associate position and that the only medication that he was taking for his low back pain was over the counter Ibuprofen.  Plaintiff advised Dr. Lestini that his pain was intolerable and he wanted to consider elective surgical options, at which point Dr. Lestini opined that it would be possible to consider Plaintiff a candidate for an L4-5 segmental fusion.
	33.	Investigative surveillance was conducted at Plaintiff's residence on August 16, 2003.  Plaintiff was observed engaged in a number of yard-work activities.  He was observed bending at the waist several times, pulling an ignition cord for a lawn trimmer and walking around his property pushing, pulling and turning the trimmer around a number of tight corners.
	34.	Additional investigative surveillance was conducted at Plaintiff's residence approximately two weeks later, and Plaintiff again was observed engaged in a number of yard-work activities.  At one point, he was observed lifting a five-gallon gasoline container to fill the fuel reservoir of the lawn trimmer and in another instance was seen bent down on his hands and knees replacing the trimmer's twine.  Several minutes later, Plaintiff was observed operating a riding lawn mower, using his arms and turning his head, neck and shoulders.  At one point, he jumped from the riding mower to move a number of vehicles, and was seen driving a truck with one arm on the steering wheel, while using the other arm to hold open the truck's door.  Finally, Plaintiff could be seen pulling a lever to adjust the height of the riding mower's blade and spending several minutes bent down on his hands and knees while working on the mower.
	35.	On October 15, 2003, Plaintiff, through counsel, moved the Commission for an order directing Defendants to pay for the surgical procedure being offered by Dr. Lestini.  Plaintiff specifically referenced the April 15, 2001 incident as the incident giving rise to his need for medical treatment and he alleged that the surgical option proffered by Dr. Lestini is "directly related" to this incident. Defendants opposed Plaintiff's motion and by Administrative Order entered December 18, 2003, Plaintiff's motion was denied.
	36.	At the hearing, Plaintiff testified that he continued to have intolerable pain and that he wished to return to Dr. Lestini and have surgery if recommended.  Furthermore, Plaintiff testified that he was in pain while doing the yard work that was the subject of the surveillance and that he did that work because there was no one else to do it.
37.	The undersigned finds that the surveillance videos do not assist in determining Plaintiff's need for or entitlement to surgery.
38.	At his deposition, Dr. Lestini testified that the incident of April 15, 2001, could have aggravated Plaintiff's low back condition or caused that condition to become symptomatic.  He further indicated that he would not recommend the surgery if Plaintiff could tolerate his level of pain.  On the other hand, if Plaintiff could not tolerate his pain, fusion surgery would be a reasonable option.  Lastly, Dr. Lestini noted that he had not seen Plaintiff since May, 2003, and thus declined to render an opinion on Plaintiff's current need for surgery without a current examination and additional diagnostic testing.
39.	In his deposition, Dr. Lacin testified that it was possible the April 15, 2001 incident had aggravated Plaintiff's low back condition and that he assumed this incident had caused Plaintiff's flare-up of low back pain.  Dr. Lacin further testified that if pain was substantial enough to alter the quality of life and other treatment options had been exhausted, this surgery was a reasonable option.  Lastly, he opined that fusion surgery was reasonably necessary for Plaintiff.
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	Based on the Stipulations and Findings of Fact, the undersigned makes the following
CONCLUSIONS OF LAW
	1.	On April 15, 2001, Plaintiff sustained an injury by accident to his low back arising out of and in the course and scope of his employment with Defendant-Employer.  N.C. Gen. Stat. §97-2.
	2.	Plaintiff is entitled to medical treatment for his low back at Defendants' expense that is reasonably designed to lessen the period of disability, or that will effect a cure or provide Plaintiff with relief from the injury sustained on April 15, 2001.  N.C. Gen. Stat. §97-25.  "Logically implicit" in this requirement is that the medical treatment be "directly related to the original compensable injury."  Weaver v. Swedish Imports Maintenance, Inc., 319 N.C. 243, 253, 354 S.E.2d 477, 483 (1987); Pittman v. Thomas & Howard, 122 N.C. App. 124, 130, 468 S.E.2d 283, 286, disc. rev. denied, 343 N.C. 513, 472 S.E.2d 18 (1996).
	3.	Plaintiff bears the initial burden of establishing the causal link between the work-related injury and the medical treatment sought.  See Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997) citing Snead v. Sandhurst Mills, Inc., 8 N.C. App. 447, 451, 174 S.E.2d 699, 702 (1970).  Plaintiff's compensable injury of April 15, 2001, exacerbated his pre-existing low back condition.  Although the quality of Plaintiff's low back pain fluctuated after April 15, 2001, and was sometimes overshadowed by his cervical pain, it continued to be a sporadic source of significant discomfort for Plaintiff, both before and after the tackling incident of November 2001.  Thus, Plaintiff continues to be entitled to treatment for his low back condition pursuant to N.C. Gen. Stat. §97-25.  This entitlement shall include another visit to Dr. Lestini and associated diagnostic testing to determine whether lumbar fusion surgery is reasonably necessary under N.C. Gen. Stat. §97-25.
	4.	Reasonable grounds exist for Defendants' denial of Plaintiff's request for medical treatment and as such Plaintiff is not entitled to payment of his attorney fees.  N.C. Gen. Stat. §97-88.1.
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Based upon the foregoing STIPULATIONS, FINDINGS OF FACT and CONCLUSIONS OF LAW, the undersigned enters the following:
A W A R D
	1.	Plaintiff's request for additional medical treatment must be and is hereby GRANTED.  Specifically, Defendants shall authorize another visit for Plaintiff to Dr. Lestini and associated diagnostic studies required by Dr. Lestini to determine whether lumbar fusion surgery is reasonably necessary for Plaintiff.  If Dr. Lestini recommends such surgery and Plaintiff continues to want it, Defendants shall authorize said surgery as well.
Plaintiff's request for attorney fees must be and is hereby DENIED.
Defendants shall bear the costs.
IT IS FURTHER ORDERED that this case shall be REMOVED from the Raleigh hearing docket.



			S/			
JOHN DELUCA
DEPUTY COMMISSIONER

I.C. No. 256930	Page 6