593032.doc

NORTH CAROLINA INDUSTRIAL COMMISSION

I.C. NO. 593032, DENISE HOUGHTON, Employee-Plaintiff v. NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, Employer-Defendant, Self-Insured, and CORVEL (Third-Party Administrator).

OPINION AND AWARD for the Full Commission by JAMES C. GILLEN, Commissioner. 

FILED: 17 January 2025

This case was heard before the Full Commission on 23 July 2024, upon appeal of Defendant from an Opinion and Award filed by Deputy Commissioner Lori A. Gaines on 29 February 2024.  The 2014 deposition transcripts of Dr. Toni Harris, Dr. Shehzad Choudry, Dr. William F. Lestini, Dixon Pearsall, Ph.D., and Mr. Scott Petty, as well as the 2023 deposition transcripts of Dr. Marc Yelle, Dr. John O'Malley, Dr Cary Idler, and Ms. Kimberly Deal, are part of the evidence of record.  
A P P E A R A N C E S
Plaintiff: 	Jackson & Associates, Wilmington, North Carolina; 
	Bruce Jackson, Jr., appearing.
	
Defendant: 	North Carolina Department of Justice, Raleigh, North Carolina; Assistant Attorney General, Heather Haney, 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 Gaines, the 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 before Deputy Commissioner Gaines as:
STIPULATIONS
All parties are properly before the Industrial Commission and the Industrial 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 and bound by the Workers' Compensation Act at the time of Plaintiff's injury.
An employment relationship existed between the parties at the time of the employee's injury.
Defendant is self-insured, and the claim is administered by CorVel.
Plaintiff sustained a lower back injury on 27 January 2006 when she drove her car into a ditch after a truck swerved into her lane of travel.  Defendant accepted the claim via the filing of a Form 60 Employer's Admission of Employee's Right to Compensation.
Plaintiff has been out of work since March 2011. 
Plaintiff's average weekly wage is $909.18 and her compensation rate is $606.12.
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The Full Commission addresses the following: 
ISSUE

Is Plaintiff entitled to continuing temporary total disability compensation? 
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Based upon a preponderance of the evidence in view of the entire record, and reasonable inferences flowing therefrom, the Full Commission makes the following:
FINDINGS OF FACT
At the time of the hearing before Deputy Commissioner Gaines, Plaintiff was 57 years old.  Plaintiff has a Bachelor of Science in Health Education degree and worked as the Executive Director of the American Cancer Institute for over a decade before going to work for New Hanover County Health Department as its Director of Health Education.  In 2000, Plaintiff began working for Defendant as a Consultant in Health Education.    
On 27 January 2006, while working for Defendant as a Public Health Education Consultant, Plaintiff was involved in a motor vehicle accident.  Defendant accepted the compensability of Plaintiff's low back injury sustained in the 27 January 2006 accident with the filing of a Form 60 Employer's Admission of Employee's Right to Compensation dated 20 February 2006.  The 20 February 2006 Form 60 describes the injury as a "LOW BACK INJURY - AGGRAVATION OF PREVIOUS BACK INJURY."
Former Deputy Commissioner Kim Ledford held a hearing in this matter on 23 October 2013 and filed an Opinion and Award in this matter on 7 August 2014.  Former Deputy Commissioner Kim Ledford's Opinion and Award was not appealed.
The Full Commission finds that Plaintiff continued to receive medical treatment following the 2014 Opinion and Award.  Plaintiff currently treats with Dr. Marc Yelle of Rex Pain Management for pain management, Dr. Cary Idler of Bone and Joint Surgery Clinic for her back, and Dr. O' Malley for her right knee.  On 25 October 2017, Dr. Idler performed a left L3-4 fusion.  
Plaintiff last worked for Defendant on 30 June 2011, having been laid off due to a Reduction in Force on that date.  Prior to the lay-off, Defendant accommodated Plaintiff, allowing her to work from home, not travel, and to sit or lay down to rest as she needed.  Ultimately, the 2014 Opinion and Award found that "Plaintiff has not worked except part time since 1 July 2011 and is incapable of returning to work and earn[ing] wages equal to or greater than the wages she earned prior to her injury either in her prior employment or any other employment."   The 2014 Opinion and Award concluded that "Plaintiff is unable to earn wages in any employment."  The 2014 Opinion and Award awarded Plaintiff "lifetime" medical expenses incurred or to be incurred due to her 27 January 2006 work injury as well as "temporary total disability compensation beginning July 1, 2011 and continuing until further order of the Commission."  Based upon the preponderance of the evidence in view of the entire record, the Full Commission finds that the Commission found and concluded that Plaintiff was disabled as of 1 July 2011 and continuing until further Order of the Commission in its 7 August 2014 Opinion and Award, which is a final award as neither party filed an appeal. 
Plaintiff has undergone extensive medical treatment since the 2006 accident.  The Opinion and Award filed 7 August 2014 and a 18 November 2014 Consent Opinion and Award made findings regarding Plaintiff's past medical treatment.  The recitals of Plaintiff's past medical treatment in the 7 August 2014 Opinion and Award and in the 18 November 2014 Consent Opinion and Award are hereby incorporated as if fully set forth herein. 
The 18 November 2014 Consent Opinion and Award was executed by the parties and signed by former Deputy Commissioner Ledford.  The 18 November 2014 Consent Opinion and Award contemplated Plaintiff's right knee condition, and resolved (1) that the 14 June 2012 right knee surgery was not related to her compensable back injury, (2) that the fall Plaintiff sustained in March 2014 was "related to her compensable injury," and (3) that Defendant would provide necessary medical and disability compensation related to the knee injury which resulted from her March 2014 fall.  
Plaintiff initially treated with Dr. Adam Brown for her back and Dr. John O'Malley for her right knee.   
Dr. Brown performed a L5-S1 fusion surgery in 2006.  Later, Dr. Lestini, an orthopedic surgeon, performed a revision back surgery in 2008 during which he fused her L4, L5, and S1 levels.  Dr. Lestini implanted a spinal cord stimulator on 15 March 2010.  Dr. Lestini was deposed on 23 January 2014.  Regarding Plaintiff's ability to work, during this deposition Dr. Lestini testified "[i]nsofar as her back is concerned, there is no major structural reason[] why she couldn't perform light duty" "eight hours a day, five days a week."  Later in the deposition, Dr. Lestini reiterated: "I don't think there's any structural reason why she couldn't perform a . . . full-time light duty position.  Medications is a separate issue." Dr. Lestini further testified that, as of 12 September 2013, the date of his last visit with Plaintiff, he "didn't change any of her restrictions or rating," leaving in place her light duty work restriction.  
On 4 May 2022, Defendant filed a Form 33 Request that Claim be Assigned for Hearing.  On this Form 33 Defendant averred that "Plaintiff cannot show ongoing disability under this claim pursuant to the North Carolina Workers' Compensation Act.  Defendant is entitled to a credit for income Plaintiff received while TTD has been paid.  Plaintiff was in an intervening motor vehicle accident and current symptoms are not causally related to this claim." 
Also on 4 May 2022, Defendant served Plaintiff with discovery inquiring about her wage-earning ability.  In her 28 June 2022 answers to Defendant's first set of interrogatories, Plaintiff denied working during the past 15 years other than in 2013 when she "did attempt to work as a retail clerk at East Coast Sports" from 12 June 2013 to 9 July 2013.  When asked about volunteer activities in this discovery request, Plaintiff advised she currently served on the Pender Memorial Hospital Board and also with the Pender County Board of Health.  She also previously served on the Board of Directors for "Share the Table." 
In response to the 4 May 2022 discovery, on 28 June 2022 Plaintiff filed and served Plaintiff's Answers to Defendant's First Set of Interrogatories and Request for Production of Documents.  In this document, Plaintiff described her relationship with SeneGence.  She characterized SeneGence as "a multi-level marketing company that sells skin care and make up products" and explained that she joined this organization on 29 January 2017.  In her 28 June 2022 Answers, Plaintiff represented: 
I originally joined as a customer but once I tried my first products I was hooked.  I have problematic skin and after spending tons on drugstore products, I felt at a loss.  SeneGen[c]e products worked for me.  My friends and family began to ask me about what I was wearing and wanted to know more.  I shared the products with them.  I thought this would be a way for me to do something with my time.  I tried sharing the products on social media sites and participated in a couple of vendor shows. Vendor shows proved to be labor intensive for the health issues I have. I quickly found out that the market is way too saturated with many other beauty products looking to do the same thing.  I decided with the health limitations that I have I really didn't have what it took to be successful in this type of business.  

Plaintiff further represented that she had earned no money, wages, or payment in any form while receiving temporary total disability benefits. 
On 11 July 2022, Defendant served Plaintiff with a second set of interrogatories seeking additional information about her income.  Plaintiff's Responses to Defendant's Second Set of Interrogatories and Request for Production of Documents, which were dated 16 September 2022, contradicted her responses to the first set of interrogatories.  While she previously denied earning any income with SeneGence, her 16 September 2022 Responses represented that she earned commissions from SeneGence beginning in March 2017 and ending in January 2022.  
On 3 February 2017, Plaintiff posted on social media that she had "started working for SeneGence International."  Plaintiff's social media posts reflect that Plaintiff set up a sales display at "Sneaky Freaky Bakery in Sneads Ferry" on 20 October 2018, sold makeup at the "Sip n Shop" in Sneads Ferry in January 2019, and invited customers "for a day of MEGA SALES at Coral Cottage Boutiques" on 9 February 2019.  An 8 January 2019 social media post shows that Plaintiff had a room in her house that she characterized as her "new office" and as her "#Senegenceoffice."  Plaintiff's Facebook page chracterized her employment as "Independent Distributor" at SeneGence International. In social media posts, Plaintiff referred to herself as "#bossbabe" and "#makeuphustler."  
At the hearing before Deputy Commissioner Gaines, Plaintiff testified that she earned commission payments from selling SeneGence products herself and, for a short time, from a salesperson working under her selling SeneGence products.  In addition, Plaintiff produced bank statements showing several payments made to her through Square, Inc., PayPal, Cash App, and Venmo. 
Plaintiff testified that when selling for SeneGence, she called her company "Denise's Lip Divas."  Plaintiff recalled that she accepted payments through Venmo, Cash App, PayPal and Square, and there "may" also have been cash payments, but that she testified she had "no way of tracking that."  While Plaintiff denied being currently engaged in selling cosmetics, she testified that, at the time of the hearing before Deputy Commissioner Gaines, she currently had a "whole bedroom full" of SeneGence products, worth "maybe $5,000.00." 
Plaintiff testified that, to further her SeneGence business, she advertised on Facebook, mailed or delivered packages to customers, recruited another person to work under her, hosted "maybe one" party to sell makeup, set up displays in businesses around town, and attended a SeneGence conference in a "huge" conference center in Oklahoma.  For the conference, she traveled by plane and stayed in a hotel for three nights.  During the four days, Plaintiff attended seminars and classes during the day, and went to dinner at night.  She also attended a Gwen Stefani concert that was associated with the conference, posting pictures and videos of this event to social media.  Following this conference, on 14 April 2019, Plaintiff posted to social media that she "Had a great week in Tulsa taking my SeneGence business to the next level."  
An Industrial Commission Form 90 Report of Earnings requires injured workers to report work earnings to verify their continuing eligibility for workers' compensation benefits.  Specifically, the Form 90 asks injured workers if they received "earnings from work during the time period indicated" and whether they "worked for a business or any person during that period."  Plaintiff filed a Form 90 dated 5 June 2018 which represented that she received no earnings from work and did no work for any business or person between 9 March 2017 to 11 April 2018.  Plaintiff filed another Form 90 dated 20 January 2021 which also indicated that she received no earnings from work and did no work for any business or person between 2 April 2020 and 4 January 2021. Plaintiff filed an additional Form 90 dated 29 July 2021 again indicating that she received no earnings from work and did no work for any business or person between 5 January 2021 and 6 July 2021, and one dated 27 January 2022 indicating that she received no earnings from work and did no work for any business or person between 7 July 2021 and 6 January 2022. 
In September 2022, Defendant retained Kimberly Deal, MS, CRC, CEAS 1, of Carolina Case Management to perform a vocational assessment and labor market survey of Plaintiff's prospective employment opportunities.  As part of the assessment and labor market survey, Ms. Deal identified over fifteen potential employment positions, open at the time the survey was completed, that complied with Plaintiff's sedentary work restrictions while also fitting with Plaintiff's education and transferrable job skills.  Ms. Deal's records reflect that all of these positions were within 50 miles of Plaintiff's residence. 
Ms. Deal was deposed by the parties on 22 May 2023.  She has a master's degree in rehabilitation counseling and vocational rehabilitation as well as a bachelor's degree in social work, and is a certified rehabilitation counselor and a certified ergonomic assessment specialist.  She is a senior case manager with Carolina Case Management, contracts with the Veterans Administration to provide vocational rehabilitation to veterans, and she performs vocational rehabilitation for federal workers' compensation cases.  She has worked in the vocational rehabilitation field for 23 years. The Full Commission finds that Kimberly Deal is an expert in vocational rehabilitation. 
Ms. Deal testified that she met virtually with Plaintiff on 3 August 2022 for an initial meeting, then performed in-person vocational testing on 9 August 2022 at the office of Plaintiff's counsel. 
During the vocational assessment, Ms. Deal learned that Plaintiff has experience in supervisory and managerial roles.  Based on Plaintiff's skills and what she learned from the vocational testing, Ms. Deal concluded Plaintiff had the potential to be employed in several fields compatible with Plaintiff's education, experience, and sedentary work restrictions.  The employment identified in Ms. Deal's vocational assessment as appropriate for Plaintiff included jobs as a community service and health education officer, an optometric assistant, a program specialist, a job development specialist, a grant coordinator, a coordinator for volunteer services or director for volunteer services, a veterans contact representative, a program manager, a case worker/eligibility worker, a hospital admitting clerk, and as an order clerk.  
Using data gathered from the vocational assessment, Ms. Deal prepared the labor market survey by researching available jobs near Plaintiff's residence that could be appropriate for Plaintiff.  Of the seventeen positions identified, Ms. Deal testified it is her opinion that all except one are compatible with Plaintiff's work restrictions and transferrable job skills.  Ms. Deal explained that the position for Pender County Schools would require lifting up to ten pounds and is thus likely not compatible.  
With respect to any requirement to change positions through the day as pain required, Ms. Deal testified that the majority of jobs listed in the labor market survey are clerical office jobs, which are typically sedentary positions and allow an employee to stand or sit as needed throughout the day: "those positions should allow for sitting and standing as needed to stretch, so that way you're not doing static posture type stance the entire workday."  Ms. Deal further explained that ergonomic devices such as sit-stand desks and telephone headsets are available to clerical office workers. 
Ms. Deal testified that her ultimate opinion is that Plaintiff more likely than not could earn wages in some capacity in the labor market: "she does have that capability, based on sedentary work restrictions, based on the local labor market, and her education, work experience, and work capabilities.  Yes."  
On 20 October 2020, Dr. O'Malley performed a right total knee arthroplasty.  Plaintiff returned to Dr. O'Malley on 15 August 2022.  Dr. O'Malley's record from this visit notes that Plaintiff continued to complain of right knee pain but had "good functional range of motion of her operative right knee replacement."  In his 15 August 2022 record, regarding her right knee, Dr. O'Malley assigned Plaintiff work restrictions of "no prolonged standing[,] no climbing[,] and limited walking." 
Plaintiff was involved in an unrelated motor vehicle accident in January 2021, resulting in right lower leg/ankle injuries, including a broken tibia and fibula, for which she received treatment separate from this claim.  
Following the 24 February 2023 hearing before Deputy Commissioner Gaines, Plaintiff returned to Dr. O'Malley on 13 March 2023.  The record from this visit reflects Dr. O'Malley's opinion that Plaintiff's right knee "has good functional range of motion[,] no signs of infection[,] no signs of deep vein thrombosis[,] overall excellent early functional result." 
On 23 May 2023, Plaintiff returned to Dr. Idler.  At that time Dr. Idler ordered MRIs of her cervical and lumbar spine, as well as a Functional Capacity Exam.  The medical note from this visit also indicates that Plaintiff "is currently out of work from workers comp." 
Dr. John O'Malley, who treated Plaintiff's right knee condition, was deposed by the parties on 26 June 2023.  Dr. O'Malley testified that he first saw her in 2012, performed a microfracture procedure in 2012, and performed a knee replacement in 2020.  Regarding the condition of Plaintiff's knee, Dr. O'Malley testified "it's not normal, but it's good for a knee replacement."  Dr. O'Malley assessed Plaintiff's right knee as having reached maximum medical improvement.  Regarding her ability to work in relation to her knee, Dr. O'Malley testified that she "can do moderate work" but that "[i]t's usually the best to do a functional capacity evaluation to see what the limitations are."  Dr. O'Malley reviewed some of the positions identified by the labor market survey prepared by Ms. Deal and noted he "would not have any concern" with Plaintiff performing the positions identified in relation to her knee.  Dr. O'Malley also testified that, with relation to her knee, Plaintiff could perform sedentary work.
Dr. Cary Idler, a board-certified orthopedic surgeon, was deposed by the parties on 12 September 2023.  Dr. Idler testified that he has been treating Plaintiff since 2017: 
[Plaintiff] initially . . . came in for some back issues.  She had several prior . . . back surgeries.  And so she basically developed an adjacent level degeneration at L3-4 and we eventually stabilized that . . . She also . . . came in for the [spinal cord] stimulator.  I believe that was her first visit, where we changed out the . . . [s]pinal cord stimulator. 

Dr. Idler further testified that Plaintiff's most recent visit with him centered on complaints related to her cervical spine rather than her lumbar spine.  Dr. Idler also testified that Plaintiff's lower back could become an issue in the future if her degeneration progresses further: "The L2-3 level has advanced a little further.  So that . . . could be an issue in the future.  But right now . . . it doesn't look bad enough . . . for surgical intervention." 
With respect to Plaintiff's wage-earning capacity, Dr. Idler testified that "she would probably have some limitation" but that "to be more specific, I would probably send her to a [functional capacity evaluation]."  Dr. Idler later testified that Plaintiff "could … do a sedentary job."  Regarding the discharge facilitator position at New Hanover Regional Medical Center, Dr. Idler testified that he thought she could perform that position, further explaining "[Plaintiff] is a very personable person . . . very nice . . . I think she would do well in some kind of, like, customer service type [job]."  However, with respect to the front desk receptionist position with Pender County Schools, Dr. Idler testified that may not be suitable for Plaintiff given the level of activity expected of school receptionists.  
Ultimately, Dr. Idler testified to a reasonable degree of medical certainty that Plaintiff is capable of working in a sedentary capacity.  Dr. Idler testified that "we encourage people to be active and to be - try to be as functional as possible.  And I think that that is to her benefit overall.  The risk of falling, the risk of fracture, and so forth will go up if she remains inactive."  Dr. Idler further explained that "a job will give you some purpose and a focus on doing something, and I think that would be to her benefit."
On 4 May 2023, the parties deposed Dr. Marc Yelle, an anesthesiologist who completed specialty training in pain medicine and received a PhD in neurobiology on functional brain imaging of pain pathways.  Dr. Yelle was tendered without objection as an expert in pain medicine.  Dr. Yelle testified that according to medical notes from his colleague, Plaintiff first came to Rex Pain Management in 2009 to treat for post-laminectomy syndrome.  Dr. Yelle testified that Plaintiff "seems to have been stable for some time now . . . ."  Dr. Yelle testified that Plaintiff is at maximum medical improvement from a pain management perspective.  Dr. Yelle explained that Plaintiff could work in a sedentary job, but that she "wouldn't be able to have prolonged sitting or if her work required travel . . . in a car or airplane that would be difficult for her as well."  
Dr. Yelle reviewed some of the jobs in the labor market survey and testified that the job duties themselves that match sedentary work would be okay, but he had concerns about how long Plaintiff would be able to perform the job duties involving sitting or standing.  Dr. Yelle also voiced concerns with job duties requiring Plaintiff to listen attentively as it is "challenging when you're in a lot of pain or if you have some of these medications that can cloud sensorium . . ." and testified that he believed Plaintiff would experience absenteeism from pain flare-ups.  Thus, Dr. Yelle testified that it is his opinion that part-time work would be better than full-time work.  However, when asked to comment on a specific job identified for Plaintiff by the vocational expert, Dr. Yelle testified, "Again, I'm not a trained vocational expert," and "it's not really my vocational training." 
When asked if Plaintiff would be able to earn wages in some capacity, Dr. Yelle testified to a reasonable degree of medical certainty that "there are situations where she could be functional and do work that is needed for her medically."  
Plaintiff was seen by Dr. Yelle on 16 June 2023, subsequent to Dr. Yelle's deposition.  The record from this visit reflects that Dr. Yelle added restrictions and changed his opinions about Plaintiff's ability to work.  In his 16 June 2023 note, Dr. Yelle explains that Plaintiff needed her "limitations and restrictions reiterated" and then went on to contradict much of his deposition testimony on the subject of Plaintiff's ability to work.  Dr. Yelle's 16 June 2023 note states: 
She is unable to lift more than 10 pounds and has limitations with bending and no ability to stoop.  She cannot sit for extended periods of time certainly 6 out of 8 hours a day.  She is greatly limited in her walking ability and even with frequent breaks the cumulative effect of her walking results in severe pain.  She cannot stand or walk for greater than 2 hours in a 24-hour period.  She often needs to lay down in the middle of the day and frequently requires change of position from sitting, standing, walking, laying.  When deposed by Workmen's Comp., they were trying to state that she can work a sedentary job full-time or even possibly part-time and I frankly do not know how this would be possible due to these limitations . . . In addition, she takes fairly significant opioids that cloud her cognitive abilities and limit her ability to drive.  Finally, she falls regularly in large part due to her pain which puts her at risk for further injury, such as femur or hip fracture. 

Based upon the preponderance of the evidence in view of the entire record, the Full Commission finds that Plaintiff is not credible on the issue of her earnings and on the subject of her ability to earn income.  In making this finding, the Full Commission notes that the Forms 90 submitted by Plaintiff represented that she earned no income when in fact she did have earnings, and that Plaintiff's answers to Defendant's First Set of Interrogatories and Request for Production of Documents similarly misrepresented her earnings.
Based upon the preponderance of the evidence in view of the entire record, the Full Commission assigns greater weight to the opinions of Drs. O'Malley and Idler, and to the deposition testimony of Dr. Yelle, than it does to the contradictory opinions of Dr. Yelle articulated in the 16 June 2023 medical record, which opinions were procured subsequent to his deposition in this matter and were made in association with an appointment requested by Plaintiff.  In making this finding, the Full Commission notes that Dr. Yelle's post-deposition opinions about Plaintiff's physical capacity are contradicted by Plaintiff's social media posts and that his post-deposition opinions were not subject to cross examination. 
Based upon the preponderance of the evidence in view of the entire record, the Full Commission finds that it is reasonably likely that Plaintiff would have been hired if she had diligently sought employment in the positions identified by Ms. Deal, which positions were suitable given that they were within 50 miles of Plaintiff's residence and that Plaintiff was capable of performing them considering Plaintiff's limitations, vocational skills, education, and experience.  In making this finding, the Full Commission considers the medical and vocational evidence, Plaintiff's work experience, the testimony of Ms. Deal, and Plaintiff's activities in furtherance of her cosmetics business.  The Full Commission further finds that Plaintiff has not produced sufficient evidence contesting the availability of these jobs or her suitability for them, or established that she has unsuccessfully sought one of these positions.
Based upon the preponderance of the evidence in view of the entire record, the Full Commission finds that Plaintiff is at maximum medical improvement regarding her back pain and compensable right knee condition.
Based upon the preponderance of evidence in view of the entire record, Plaintiff is entitled to have Defendant provide all medical treatment for Plaintiff's injury consequent of the 27 January 2006 accident, including the right knee condition consequent of the March 2014 fall as contemplated by the 18 November 2014 Consent Opinion and Award. 
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Based upon the foregoing Stipulations and Findings of Fact, the Full Commission makes the following:
		                             CONCLUSIONS OF LAW
Plaintiff sustained an admittedly compensable injury to her back on 27 January 2006 while working for Defendant.  N.C. Gen. Stat. §§ 97-2(6); 97-18(b) (2023).  
Regarding the Industrial Commission's ability to draw inferences from the evidence presented, the North Carolina Court of Appeals has held "[it] is for the Commission to determine the credibility of the witnesses, the weight to be given the evidence, and the inferences to be drawn from it . . . ."  Rackley v. Coastal Painting, 153 N.C. App. 469, 472, 570 S.E.2d 121, 124 (2002).  
In Johnson v. Southern Tire Sales & Service, the Supreme Court of North Carolina held that "a presumption of disability in favor of an employee arises only in limited circumstances."  358 N.C. 701, 706, 599 S.E.2d 508, 512 (2004).  Those limited circumstances include, as in this case, when there has been a prior disability award from the Industrial Commission.  Id.  Once the disability is proven, "there is a presumption  [126] that it continues until 'the employee returns to work at wages equal to those [she] was receiving at the time [her] injury occurred.'"  Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 476, 374 S.E.2d 483, 484 (1988) (quoting Watkins v. Motor Lines, 279 N.C. 132, 137, 181 S.E.2d 288, 592 (1971)).  Once the presumption arises, a "finding of maximum medical improvement is insufficient to overcome this presumption."  Burchette v. East Coast Millwork Distributors, Inc., 149 N.C. App. 802, 806, 562 S.E.2d 459, 462 (2002); see also Brown v. S & N Commc'ns, Inc., 124 N.C. App. 320, 330-31, 477 S.E.2d 197, 203 (1996) ("A finding of maximum medical improvement is not the equivalent of a finding that the employee is able to earn the same wage earned prior to injury and does not satisfy the defendant's burden. . . . After a finding of maximum medical improvement, the burden remains with the employer to produce sufficient evidence to rebut the continuing presumption of disability; the burden does not shift to the employee.").
Given former Deputy Commissioner Ledford's 7 August 2014 Opinion and Award filed in this matter, Plaintiff is entitled to a presumption of ongoing disability.  Johnson, 358 N.C. at 706, 599 S.E.2d at 512.  However, Defendant may rebut this presumption by presenting "evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations.'"  Burwell v. Winn-Dixie Raleigh, Inc., 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994) (quoting Kennedy v. Duke Univ. Med. Ctr., 101 N.C. App. 24, 33 (1990)) (emphasis omitted).  The Burwell Court explained:  
An employee is capable of getting a job if there exists a reasonable likelihood . . . that he would be hired if he diligently sought the job. It is not necessary . . . that the employer show that some employer has specifically offered plaintiff a job. If the employer produces evidence that there are suitable jobs available which the claimant is capable of getting, the claimant has the burden of producing evidence that either contests the availability of other jobs or his suitability for those jobs, or establishes that he has unsuccessfully sought the employment opportunities located by his employer.

Id. at 73-74, 441 S.E.2d at 149 (internal citations and quotations omitted).  The Burwell Court ultimately held that evidence from a vocational consultant that the injured worker was capable of performing certain jobs that were available within a thirty-five to fifty mile radius of his home taking into account his age, education, physical limitations, and vocational skills, was "sufficient to satisfy the defendant-employer's burden of showing that there existed a reasonable likelihood that plaintiff would be hired if he diligently sought employment in the jobs found by defendant-employer."  Id.   In this case, based upon the preponderance of the evidence in view of the entire record, including the medical and vocational evidence, Plaintiff's work experience, the testimony of Ms. Deal, the expert in vocational rehabilitation, and Plaintiff's activities in furtherance of her cosmetics business, Defendants have rebutted the presumption of disability and met its burden of showing that jobs, suitable as defined by N.C. Gen. Stat. § 97-2(22), are available and that Plaintiff is capable of getting one, taking into account both her physical and vocational limitations.  Id.  Furthermore, Plaintiff has not produced evidence successfully contesting the availability of these jobs, her suitability for them, or established that she has unsuccessfully sought one of these positions. Id.  Because Defendants rebutted Plaintiff's evidence of disability, going forward, Plaintiff is not entitled to ongoing total disability compensation.  N.C. Gen. Stat. § 97-29 (2023).  
Plaintiff is entitled to payment of medical expenses, incurred or to be incurred, due to her 27 January 2006 back injury, including the right knee condition consequent of the March 2014 fall, as may reasonably be required to effect a cure, provide relief, or lessen the period of disability.  N.C. Gen. Stat. §§ 97-2(19), 97-25 (2023).
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Based upon the foregoing Findings of Fact and Conclusions of Law, the Full Commission enters the following: 
				        O R D E R
Defendants shall pay all medical expenses incurred, or to be incurred, as a result of Plaintiff's 27 January 2006 compensable back injury, including the right knee condition consequent of the March 2014 fall.  
Defendant's request to terminate temporary total disability compensation is GRANTED.  



Vice-Chair GRIFFIN and Commissioner PHILLIPS concur. 

 The North Carolina Department of Justice informed the Industrial Commission that Heather Haney is no longer counsel of record for Defendant and requested that a copy of Orders or Opinions and Awards in which Ms. Haney was counsel of record be served on Special Deputy Attorney General Sharon Patrick-Wilson.  As such, a copy of this Opinion and Award will be served on Special Deputy Attorney General Patrick-Wilson. 


 At the time of signing the Pre-Trial Agreement, CCMSI was engaged as third-party administrator for Defendant.  From July 1, 2023, CorVel Corporation is the third-party administrator. 

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