915781.doc

I.C. NO. 915781, STANLEY DAVID WALTERS, Employee, Plaintiff v. ROADWAY EXPRESS, INC., Employer, SELF-INSURED (GALLAGHER BASSETT SERVICES, INC., Servicing Agent), Defendant.  OPINION AND AWARD by BRADLEY W.  HOUSER, Deputy Commissioner, N.C. Industrial Commission.  Filed 10 June 2004.



This matter was heard by the undersigned in Raleigh on 3 June 2004 following defendant's request for an expedited hearing and upon the Order by Chief Deputy Commissioner Stephen T. Gheen.  The sole issue to be determined is whether defendants have the right to direct plaintiff's medical care and have plaintiff treated by Dr. Thomas P. Vail, or whether treatment by Dr. David Janeway, a physician to whom plaintiff was referred by an authorized treating physician, including the surgery scheduled for 14 June 2004, should be approved.  Each party has now submitted a proposed Opinion and Awards, and this matter is ready for decision.
A P P E A R A N C E S
	Plaintiff:	Robert A. Lauver, Attorney, Kernersville, NC; Robert A. Lauver, appearing.

	Defendants:	Stiles Byrum & Horne, Attorneys, Charlotte, NC; Henry C. Byrum, Jr., appearing.

* * * * * * * * * * *
STIPULATED EXHIBITS
At the hearing, the parties stipulated into evidence a packet of documents that as admitted into the record, and marked as Stipulated Exhibit (1) and that included the following:
(Tab-1)	Industrial Commission forms;

(Tab-2)	Plaintiff's Request For Approval of Independent Medical Evaluation by Dr. Thomas Vail;

(Tab-3)	Defendant's Denial of treatment by Dr. David Janeway dated 13 April 2004;

(Tab-4)	Defendant's Denial of treatment by Dr. David Janeway dated 19 May 2004;

(Tab-5)	Plaintiff's Medical and rehabilitation records (Note:  the parties agreed to substitute medical and rehabilitation records brought by plaintiff's for those provided by defendant in this Stipulated Exhibit);

(Tab-6)	The Curriculum Vitae of Dr. Thomas P. Vail;

(Tab-7)	A Medical Bill for Plaintiff's Independent Medical Evaluation by Dr. Thomas P. Vail

(Tab-8)	Various Documents Originally Offered by Plaintiff and Stipulated to by Defendant.

* * * * * * * * * * *
Based upon stipulated documents and evidence of record, the undersigned enters the following:
FINDINGS OF FACT
1.	On all relevant dates, the parties were bound by and subject to the provisions of the North Carolina Workers' Compensation Act.
2.	Defendant-employer is a duly qualified self-insurer with its workers' compensation program being administered by Gallagher Bassett Services, Inc.
	3.	This is an admittedly compensable claim, with the date of plaintiff's injury by accident being 22 July 1998.  Defendant admitted the compensability of plaintiff's injury through the filing of an Industrial Commission Form 60 dated 30 July 2001.  Plaintiff's injury occurred as he caught his right foot between two pallets and twisted his right knee.  Plaintiff was employed by defendant as dock worker. Plaintiff is presently totally disabled as a result of his injury, and defendant is paying ongoing total disability compensation to plaintiff.
4.	Subsequent to his 22 July 1998 injury, plaintiff was referred by defendant to Dr. Jerome E. Jennings, an orthopedic surgeon.  Dr. Jennings first examined plaintiff on 30 July 1998, diagnosed a right knee sprain and recommended conservative treatment.  Dr. Jennings continued conservative treatment until 19 October 1998, when he performed arthroscopic surgery on plaintiff's right knee.  On 26 January 1999, Dr. Jennings opined that plaintiff had reached at maximum medical improvement and assigned a permanent partial disability rating of fourteen percent (14%) for his right leg.
5.	Following continued complaints of pain and swelling, Dr. Jennings performed a second arthroscopic surgery on plaintiff's right knee on 19 July 1999.  On 15 October 1999, Dr. Jennings opined that plaintiff had reached maximum medical improvement and assigned an additional six percent (6%) permanent partial disability to his right leg.  Subsequent to
15 October 1999, plaintiff continued to treat with Dr. Jennings for complaints of right knee pain and effusion.  Because of these ongoing symptoms, Dr. Jennings performed a third arthroscopic procedure on plaintiff's right knee on 15 May 2001.
6.	On 1 October 2001, defendant referred plaintiff to Dr. Stephen Lowe, an orthopaedic specialist, to determine whether plaintiff was a candidate for a total knee replacement.  Dr. Lowe diagnosed plaintiff as having recurrent swelling, but concluded that there was not sufficient bony pathology at that time to warrant a knee replacement.  Thereafter, Dr. Lowe pursued a course of conservative treatment that included a series of Synvisc injections.  Plaintiff subsequently developed locking of the right knee and Dr. Lowe noted symptoms of synovitis, episodes of locking and effusion.  On 17 December 2001, Dr. Lowe diagnosed osteoarthritis of plaintiff's right knee and opined that plaintiff's injury and multiple surgical procedures had created a situation in which there was a deterioration of the cartilage surfaces.
	7.	Plaintiff continued to receive treatment from Dr. Lowe through 4 June 2002, when he was referred to Dr. Lowe's associate, Dr. John Ritchie.  This referral followed and incident in which plaintiff's symptoms were exacerbated when his right knee symptoms caused him to fall.
Dr. Ritchie first examined plaintiff on 25 June 2002, at which time plaintiff was experiencing persistent pain and swelling that was being exacerbated by his work.  Based upon these symptoms and the failure of conservative treatment, Dr. Ritchie recommended a fourth arthroscopic surgery which was performed on 11 July 2002.  Since 25 June 2002, Dr. Ritchie has been the plaintiff's authorized treating physician.  Dr. Ritchie opined that plaintiff had reached maximum medical improvement for his right knee on 14 January 2003.
8.	As first diagnosed by Dr. Ritchie on 29 October 2002, plaintiff developed left knee pain secondary to overuse with mild chondromalacia patella as the result of his right knee injury.  On 14 January 2003, Dr. Ritchie assigned a five percent (5%) permanent partial disability rating to plaintiff's left knee.  The left knee condition was accepted as a compensable part of this claim pursuant to an Industrial Commission Form 26 Agreement approved on 27 March 2003.
	9.	During this period in which he received treatment for his left knee, plaintiff continued to experience problems with his right knee.  On 3 March 2003, plaintiff returned to Dr. Ritchie and reported continued pain and other symptoms.  For these continued right knee symptoms, Dr. Ritchie gave plaintiff injections, and noted that further treatment options were minimal.  As a result of Dr. Ritchie's opinion that treatment options were minimal, counsel for plaintiff sent a correspondence to counsel for defendant dated 23 May 2003, that requested a second opinion medical evaluation of plaintiff's right knee injury for treatment recommendations with Dr. Thomas P. Vail.  In this correspondence, counsel for plaintiff also noted that should Dr. Vail have further treatment options, that he would request Dr. Vail as plaintiff's authorized treating physician.  This Independent Medical Examination with Dr. Vail was approved by defendant on 13 June 2003.  Thereafter, counsel for plaintiff contacted Dr. Vail and requested the earliest available appointment.  The appointment with Dr. Vail was then set for 28 October 2003.
	10.	On 21 August 2003, Dr. Ritchie performed arthroscopic surgery on plaintiff's left knee to treat a degenerative tear of the medial meniscus, chondroplasty of the patella and synovitis.
11.	In September 2003, Dr. Ritchie recommended a fifth arthroscopic surgical procedure to elevate or realign plaintiff's right knee cap, referred to as a "McKay procedure". Plaintiff deferred a decision on that treatment recommendation pending the outcome of his second opinion evaluation with Dr. Vail.
12.	On 28 October 2003, Dr. Vail examined plaintiff, who reported experiencing throbbing, shooting, stabbing, burning pain, which was worse at night.  Dr. Vail's initial assessment was that plaintiff had an ongoing source of irritation within the right knee joint.  Dr. Vail further opined that plaintiff did not require an extensor mechanism realignment or elevation of his right knee, or a total knee procedure, and instead recommended continued conservative treatment.  Dr. Vail also ordered an MRI which revealed degenerative changes in plaintiff's right knee.
13.	On 6 January 2004, plaintiff was again examined by Dr. Ritchie for continued evaluation left knee and right knee symptoms.  Plaintiff's pain in his left knee was increasing, his right knee was remained swollen and he was having difficulty with ambulation.
14.	On 12 January 2004, upon referral by defendant, plaintiff was evaluated by Dr. Thomas Fehring regarding the need for a total knee replacement.  Dr. Fehring opined that plaintiff should not pursue a total knee replacement at that time due to his age and the lack of diagnostic findings to support such a procedure.
15.	Plaintiff returned to Dr. Vail on 10 February 2004.  At this appointment, Dr. Vail opined that plaintiff's knee would likely deteriorate to a state at which a total knee replacement would eventually be necessary, but counseled delaying that procedure as long as possible given plaintiff's age.  Dr. Vail advised ongoing conservative treatment, but did not outline or offer specific "conservative" treatments at that time, and noted that plaintiff could return on an as needed basis.
16.	On 12 February 2004, Dr. Ritchie referred plaintiff to his partner, Dr. David Janeway, for an opinion regarding the possibility of a total knee replacement.  Dr. Janeway first examined plaintiff on 13 February 2004, at which time he noted plaintiff's had long standing difficulty with his right knee, his prior surgical procedures and advanced degenerative changes.  For plaintiff's condition, Dr. Janeway prescribed Duragesic Patches prior to proceeding with a knee replacement procedure.  On 15 March 2004, Dr. Janeway determined that the Duragesic Patches were not alleviating plaintiff's pain and recommended proceeding with the right knee arthroplasty (total knee replacement.) on the right.  This procedure is currently scheduled for
14 June 2004.
17.	Defendant did not authorize the evaluations by Dr. Janeway and have informed plaintiff that it does not intend to pay for the proposed knee replacement surgery.  However, the evaluations by Dr. Janeway stemmed from a referral by Dr. Ritchie, plaintiff's long-time, authorized treating physician.
	18.	At the hearing, plaintiff, who is forty-three (43) years of age, testified regarding the various distances and driving times from his home near Lexington to Dr. Janeway's office in Winston-Salem and to Dr. Vail's office at Duke University Medical Center.  In this Opinion and Award, the evidence relating to travel to and from certain treatment locations is not being taken into consideration by the undersigned.
19.	Under the Act, when a defendant admits an employee's right to compensation, that defendant acquires the right, although not absolute, to direct medical treatment.  In this case, defendant has not only directed plaintiff's medical care, but has done so in a cooperative manner. Accordingly, while noting that Dr. Vail did not give a specific recommendation for future treatment at his last appointment with plaintiff, the undersigned nonetheless will not severe defendant's direction of plaintiff's medical treatment at this time.  Defendant will not be responsible for any expenses associated with the procedure scheduled for 14 June 2004.  However, expenses associated with the examinations by Dr. Janeway shall be borne by defendants given that these stemmed from a referral by Dr. Ritchie, plaintiff's long-time, authorized treating physician.  Additionally, it is found that plaintiff would benefit from a return evaluation by Dr. Vail.  Subsequent to that evaluation, if the parties are in disagreement regarding the course of plaintiff's treatment, either may file the proper Motion or hearing request. Lastly, no designation of a new authorized treating physician is made at this time.
* * * * * * * * * * *
Based upon the foregoing Stipulations and Findings of Fact, the undersigned concludes as follows:
CONCLUSIONS OF LAW
1.	On 22 July 1998, plaintiff sustained an injury by accident arising out of and in the course of his employment with defendant-employer.  N.C. Gen. Stat. §97-2(6).
2.	Based upon the credible evidence of record, the undersigned concludes that defendant will not be responsible for any expenses associated with the procedure scheduled for 14 June 2004, but will be responsible for the expenses associated with the examinations by Dr. Janeway.  N.C. Gen. Stat. §§97-25; 25.1.  Additionally, the undersigned concludes that plaintiff would benefit from a return evaluation by Dr. Vail.  Id.
* * * * * * * * * * *
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned enters the following:
A W A R D
1.	Defendant shall not be responsible for any expenses associated with the procedure scheduled for 14 June 2004, but shall be responsible for the expenses associated with the examinations by Dr. Janeway.
2.	Plaintiff shall cooperate with the scheduling of a return evaluation by Dr. Vail.  Subsequent to that evaluation, if the parties are in disagreement regarding the course of plaintiff's treatment, either may file the proper Motion or hearing request.
	3.	No costs are assessed at this time.



			S/			
BRADLEY W. HOUSER
DEPUTY COMMISSIONER

I.C. NO. 915781	PAGE 8

CODE:  123