487683.doc

I.C. NO. 487683, CARMELO JUAREZ, Employee, Plaintiff v. LANGFORD CONSTRUCTION CO., Employer, BUILDERS MUTUAL INSURANCE CO., Carrier, Defendants.  OPINION AND AWARD by KIM LEDFORD, Deputy Commissioner, N.C. Industrial Commission.  Filed 14 November 2008.



This case was set for hearing before the undersigned in Raleigh on 8 May 2008.  The parties agreed that no live testimony was needed.  The parties submitted stipulated facts in the Pre-Trial Agreement and a set of stipulated documents, which was received on 13 June 2008.  Following receipt of the contentions of the parties on 15 July 2008, the record was closed.
A P P E A R A N C E S
	Plaintiff:	Scudder & Hedrick, Attorneys, Raleigh, North Carolina; Alice Tejada, appearing.

	Defendants:	Lewis & Roberts, PLLC, Attorneys, Raleigh, North Carolina; Jeffrey A. Misenheimer, appearing.

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	The undersigned finds as fact and concludes as matters of law the following, which were entered into by the parties in a Pre-Trial Agreement as
STIPULATIONS
1.	All parties are properly brought before the Industrial Commission, are subject to and bound by the provisions of the Workers' Compensation Act, and the Commission has jurisdiction over the parties and of the subject matter, and an Employee-Employer relationship existed between Plaintiff and Defendant-employer.
2.	All parties have been correctly designated, and there are no questions as to misjoinder or nonjoinder of the parties.
3.	All carriers have been correctly designated, and BUILDERS MUTUAL INSURANCE COMPANY is properly on the risk, and there are no questions as to insurance coverage of the parties.
4.	Plaintiff suffered a compensable injury to his left knee on 22 November 2004.
5.	Defendants accepted the claim as compensable on a Form 63 on 14 December 2004, and began paying weekly temporary total disability compensation as of 13 December 2004 in the amount of $371.82 for the weeks from 23 November 2004 through 27 December 2004.
6.	The last payment of indemnity compensation was 27 December 2004 and the last payment of medical compensation was 8 December 2005.
7.	On 21 January 2005, Dr. Derek L. Reinke, Plaintiff's treating physician, released Plaintiff with a zero percent (0%) permanent partial impairment rating.
8.	Plaintiff did not receive a copy of Dr. Reinke's 21 January 2005 letter wherein Dr. Reinke assigned Plaintiff with a 0% rating.
9.	Plaintiff requested a second opinion on the rating on 10 December 2007.
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As set forth in the Pre-Trial Agreement and this Opinion and Award, the Commission addresses the following
ISSUE
	1.	This is an appeal of the Executive Secretary's office decision that Plaintiff did not timely request a N.C. Gen. Stat. §97-27(b) second opinion.  The issue is whether Plaintiff's request for a second opinion regarding any permanent impairment is time barred?
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Based upon the competent evidence of record, the undersigned makes the following additional
FINDINGS OF FACT
1.	Plaintiff sustained a compensable injury to his left knee on 22 November 2004.  Defendants filed a Form 63 on 14 December 2004 and began paying medical and indemnity compensation without prejudice as of 23 November 2004.
2.	Defendants authorized treatment with Derek L. Reinke, M.D. of Cary Orthopaedic & Sports Medicine Specialists.  On 13 December 2004, through a nurse specialist acting as translator, Plaintiff reported to Dr. Reinke that he fell from a ladder after losing his footing.  Dr. Reinke diagnosed a left knee injury with a possible chondral contusion.  X-rays showed no evidence of fracture and an MRI of the knee was also normal.
3.	Dr. Reinke saw Plaintiff again on 29 December 2004.  Plaintiff reported that he had been doing light duty, but still had pain in his knee.  Dr. Reinke recommended physical therapy and work hardening, with light duty work avoiding ladders, stairs and heavy lifting.
4.	Plaintiff returned for a follow-up visit on 17 January 2005.  Plaintiff reported achiness in his knee.  Dr. Reinke released Plaintiff to regular duty and recommended home exercises, and planned to see Plaintiff as needed.  On 21 January 2005, Dr. Reinke wrote a letter addressed "To Whom It May Concern:" giving Plaintiff a zero percent (0%) rating to his left knee.  As stipulated by the parties, Plaintiff did not receive a copy of Dr. Reinke's 21 January 2005 letter.
5.	The Defendants completed a Form 28, but did not file a Form 28B, indicating that the last payment of compensation or medical compensation had been made.
6.	Plaintiff requested a second opinion as to his permanent impairment rating on 10 December 2007.
7.	Defendant-Carrier denied the request on the basis that the last medical payment was made on 8 December 2005 and that a Form 18 was not filed until 10 December 2007.
8.	On 3 January 2008, Plaintiff filed a "Motion to Compel Defendants to Authorize Payment of a Second Opinion on a Rating Pursuant to N.C. Gen. Stat. §97-27(b)."
9.	The Plaintiff's Motion for a second opinion on a rating was denied by Order of Special Deputy Commissioner Meredith R. Henderson filed 28 January 2008.
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Based upon the foregoing stipulations and findings of fact, the undersigned enters the following
CONCLUSIONS OF LAW
1.	On 22 November 2004, Plaintiff sustained an injury to his left knee as a result of an accident arising out of and in the course of his employment with Defendant-employer.  N.C. Gen. Stat. §97-2(6).
2.	Defendants accepted compensability of Plaintiff's 22 November 2004 injury on a Form 63 on 14 December 2004 and, since they did not deny the claim within the statutory period, the claim became compensable.  N.C. Gen. Stat. §§97-18(d), 97-82(b); Higgins v. Michael Powell Builders, 132 N.C.App. 720, 515 S.E.2nd 17 (1999).
3.	Plaintiff's claim for further indemnity compensation is not time barred because the two-year limitation in N.C. Gen. Stat. §97-47 does not apply under the facts of this case, where this is not a claim for a change of condition.
4.	Where Plaintiff has been paid temporary total disability compensation pursuant to N.C. Gen. Stat. §§97-18(d) and 97-82(b) and the extent of his permanent impairment has not been reviewed by the Industrial Commission, N.C. Gen. Stat. §97-47 does not apply.  Perez v. American Airlines, 174 N.C. App. 128, 131, 620 S.E.2d 288, 291 (2005), review improvidently allowed,  360 N.C. 655, 638 S.E.2d 469 (2006); and, Beard v. Blumenthal Jewish Home, 87 N.C. App. 58, 359 S.E.2d 261 (1987), disc. rev. denied, 321 N.C. 471, 364 S.E.2d 918 (1988).
5.	Plaintiff's request for a second opinion on any permanent impairment to his left knee is therefore not time-barred and should be allowed.  N.C. Gen. Stat. §97-27(b).
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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 claim for a second opinion medical examination is hereby GRANTED.
2.	Defendants shall pay for Plaintiff's second opinion medical examination on the issue of any permanent impairment to his left knee.
	3.	Defendants shall pay the costs of this action.
	It is further ORDERED that this case be REMOVED from the Raleigh Docket.



			S/			
KIM LEDFORD
DEPUTY COMMISSIONER

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