20006142.doc

NORTH CAROLINA INDUSTRIAL COMMISSION

I.C. NO. 20-006142, SERGEY GALICH, Employee, Plaintiff, v. SIPA NORTH AMERICA, INC., Employer, NEW HAMPSHIRE INSURANCE COMPANY, Carrier (AIG CLAIMS, INC., Third-Party Administrator), Defendants.

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

FILED: 18 February 2025

This case was heard before the Full Commission on 21 August 2024, upon appeal of Plaintiff from an Opinion and Award filed by Deputy Commissioner David Mark Hullender on 11 March 2024.  The deposition transcripts of Dr. Bryan Loeffler and Dr. Patrick Connor are part of the evidence of record.  
A P P E A R A N C E S:

Plaintiff:	The Law Offices of Bradley H. Smith, Charlotte, North Carolina; 
Bradley H. Smith, Counsel of Record.               	
		
Defendants:	McAngus, Goudelock & Courie, PLLC, Charlotte, North Carolina; Savannah Kent, Counsel of Record. 
	
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	The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before former Deputy Commissioner Tillman, 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 addresses the following:

ISSUE

Is Plaintiff entitled to further compensation under the Act should he continue to decline shoulder surgery? 
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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
1.	The date of the injury which is the subject of this claim is 7 February 2020.
2.	Plaintiff suffered a compensable injury to his right shoulder for which Defendants filed a Form 60 Employer's Admission of Employee's Right to Compensation on 16 August 2022. Defendants initially filed a Form 63 Notice to Employee of Payment of Compensation without Prejudice or Payment of Medical Benefits Only Without Prejudice, Section 2 Medical Benefits Only on 1 July 2020.
3.	On 7 February 2020, the parties hereto were subject to and bound by the provisions of the North Carolina Workers' Compensation Act.
4.	On 7 February 2020, an employment relationship existed between Plaintiff and Defendant-Employer.
5.	On 7 February 2020, Defendant-Employer employed three or more employees. 
6.	As of 7 February 2020, the carrier of workers' compensation insurance in North Carolina for Defendant-Employer was New Hampshire Insurance Company.
7.	Plaintiff's average weekly wage is $1,797.10, which results in the maximum compensation rate of 2020: $1,066.00.
8.	Following his injury, Plaintiff underwent a course of conservative medical treatment, which culminated in a surgical recommendation on 18 August 2020.  Dr. Bryan Loeffler recommended a biceps tenodesis.
9.	On 2 September 2020, Plaintiff presented to Dr. Seth Jaffe for a second opinion evaluation.  Dr. Jaffe recommended a labral debridement and/or labral repair, subacromial decompression and debridement of the partial-thickness rotator cuff tear.
10.	On 6 October 2020, Plaintiff presented to Dr. Hayes for an evaluation of his right shoulder.  Dr. Hayes recommended a subacromial decompression and labral repair and a distal clavicle resection.
11.	On 8 June 2021, Plaintiff presented to Dr. Connor for an evaluation of his right shoulder.  Dr. Connor opined that Plaintiff needed a shoulder arthroscopy with a biceps tenodesis, removal of bone spurs, cleaning of the acromioclavicular joint, rotator cuff repair, if necessary, and labral tear repair.
12.	Plaintiff has not received medical treatment under workers' compensation since 8 June 2021.
13.	Plaintiff has not returned to work since his work-related incident on 7 February 2020, and is receiving temporary total disability benefits in the amount of $1,066.00 per week.
14.	The parties have participated in two mediated settlement conferences on 2 August 2022, and 16 June 2023, respectively.  Defendants have paid the entire mediation fee in the amount of $2,283.75.  Pursuant to Rule 107 of the Rules for Mediated Settlement and Neutral Evaluation Conferences of the North Carolina Industrial Commission, Defendants are entitled to a credit in the amount of $1,141.88 for payment of Plaintiff's share of the mediation costs, and Defendants may withhold funds from any award for this purpose.
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The following documents were accepted into evidence by the Deputy Commissioner as:

EXHIBITS

1.	Stipulated Exhibit #1: Pre-Trial Agreement;
2.	Stipulated Exhibit #2: Indexed set of documents including Industrial Commission forms and filings, Plaintiff's medical records, discovery responses and employment records;
3.	Plaintiff's Exhibit #1, Plaintiff's resume;
4.	Plaintiff's Exhibit #2: Plaintiff's Job Log; and
5. 	Plaintiff's Exhibit #3: Plaintiff's email and correspondence relating to jobs. 
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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
Plaintiff attended Chelyabinsk Technical University in Chelyabinsk, Russia, graduating with a five-year "Bachelor of Science Mechanical Engineer" degree.  Plaintiff immigrated to the United States in 1982 and later became a United States citizen.  Plaintiff began working with Defendant-Employer in September of 2018 and was employed as a Field Service Engineer at the time of the incident giving rise to this claim.  The parties stipulated that Plaintiff sustained a compensable injury to his right shoulder while working for Defendant-Employer on 7 February 2020.   Plaintiff was sixty-two years old at the time of the hearing before the Deputy Commissioner. 
Following the injury, Plaintiff initially received treatment at Concentra Medical Center on 11 February 2020.  The record from this visit reflects that Plaintiff presented with "right shoulder pain [status post] twisting and turning a wrench" at work.  He was assessed with a "[r]ight shoulder strain" and prescribed cyclobenzaprine, ibuprofen 800 mg, and physical therapy.  Plaintiff participated in physical therapy through Concentra beginning in February 2020, continuing until September 2020. 
On 3 March 2020, Plaintiff presented to Charlotte Radiology for an MRI of the right upper extremity.  The MRI findings revealed a "[f]ocal intrasubstance tear at the insertion of the mid fibers supraspinatus tendon on the footprint (superior facet)," "[m]ild superimposed tendinosis," a "mild acromioclavicular osteoarthrosis," and a "Type 2 SLAP tear." 
On 26 May 2020, Plaintiff initially presented to Dr. Bryan Loeffler at Concentra. At this visit, Dr. Loeffler discussed operative and non-operative treatment with Plaintiff, before   recommending conservative management.  
On 1 July 2020, Defendants filed a Form 63 Notice to Employee of Payment of Compensation without Prejudice or Payment of Medical Benefits Only Without Prejudice, Section 2 Medical Benefits Only.  This Form reflects an injury to Plaintiff's "[s]houlder" on 7 February 2020.  
Plaintiff returned to Dr. Loeffler on 18 August 2020.  The record from this visit reflects Dr. Loeffler's diagnoses: "[r]ight biceps labral complex injury with superior labral tear anterior and posterior as well as adhesive capsulitis."  Dr. Loeffler continued Plaintiff's work restrictions, including a less-than-five-pound lifting restriction.  Dr. Loeffler noted, "[Plaintiff] has been working diligently with therapy, however, has not experienced gains that will allow him to return to work and the function he desires."  Dr. Loeffler discussed treatment options, including a biceps tenodesis surgery, but Plaintiff "wished to defer surgery if at all possible," despite "beginning to plateau with physical therapy." 
On 15 September 2020, Plaintiff returned to Dr. Loeffler and expressed discouragement at his lack of progress and his continuing right shoulder pain.  During this visit Dr. Loeffler explained to Plaintiff that his "options are living with the shoulder as it currently is or having surgery."  Plaintiff again declined surgery.  Given Plaintiff's decision, Dr. Loeffler's 15 September 2020 note released Plaintiff from his care with a 5% permanent partial disability rating to his right arm and permanent restrictions of "[n]o lifting, pushing, or pulling more than 10 lbs. with the right arm."  Dr. Loeffler also expressed a willingness to treat Plaintiff again should he decide to proceed with surgery.  
On 23 September 2020, Plaintiff was seen by Dr. Seth L. Jaffe at Carolina Bone & Joint for a second opinion.  Dr. Jaffe's record from this visit reflects that Plaintiff "failed conservative treatment care and there is no further indication for medication [or] physical therapy."  Dr. Jaffe disagreed with the recommendation for a biceps tenotomy procedure but instead recommended "operative arthroscopy of the right shoulder with labral debridement and/or labral repair and in addition to subacromial decompression and debridement of partial-thickness rotator cuff tear."  This record also reflects that Plaintiff agreed to proceed with the surgery and was referred to Dr. Jaffe's colleague, Dr. Chason Hayes. 
On 6 October 2020, Plaintiff presented to Dr. Chason S. Hayes at Carolina Bone & Joint.  Dr. Hayes' record from this visit reflects a diagnosis of "non-traumatic incomplete tear of right rotator cuff" and reflects that Plaintiff, "[a]fter discussion . . . about the symptoms and the treatment options . . . wishes to undergo [r]ight shoulder arthroscopy with subacromial decompression, distal clavicle resection, and possible superior labral repair to correct the problem."  However, Plaintiff testified that he later changed his mind about undergoing this surgery because he "did research on Dr. Hayes and the references stated that he's not a … specialist on surgeries on shoulders and the general references were not good."  
On 14 January 2021, Dr. Hayes completed a Form 25R Evaluation for Permanent Impairment and released Plaintiff at maximum medical improvement.  Dr. Hayes also assigned no permanent partial impairment rating to the right upper extremity and noted that Plaintiff was released with permanent restrictions.  However, Dr. Hayes did not specify the permanent restrictions. 
Based on Plaintiff's own research of providers in the Charlotte area, Plaintiff requested an evaluation with Dr. Patrick Connor.  Defendants scheduled an evaluation with Dr. Connor, which took place on 8 June 2021.
On 8 June 2021, Dr. Connor diagnosed a mild partial thickness bursal-sided injury to the superior rotator cuff and recommended shoulder arthroscopy including a biceps tenodesis, removal of bone spurs, cleaning of the acromioclavicular joint, and rotator cuff repair.  The "Plan" portion of this note states, in part:  
We had a long discussion with [Plaintiff].  He openly states that he has some apprehension to having a tenodesis.  He is worried about it being a drastic procedure to cut a tendon and reattach it, which I understand. I explained to him the rationale for the recommendation in the setting such as this.  In the research, literature, and studies with this scenario the tenodesis is a more reliable procedure than a SLAP lesion repair as far as outcomes.  Also a much lower reoperation rate, which is the rationale for the recommendation, which I explained to him.  [Plaintiff] would like to think about things further.  

Notwithstanding Dr. Connor's recommendation, Plaintiff declined to undergo the surgery.  Plaintiff testified about his rationale: 
Tenodesis [is an] extremely invasive procedure and I was in so much . . . pain . . . right after the incident, and then when Dr. Connor recommended this I was virtually out of pain.  So . . . at that moment to go for tenodesis was just unthinkable to me . . . I was scared to have a surgery and to do the tenodesis especially.  

14.	Defendants filed a Form 60 Employer's Admission of Employee's Right to Compensation on 16 August 2022.  On this form, Defendants admitted the compensability of Plaintiff's "Right upper extremity" condition consequent of the 7 February 2020 injury.  
15.	Dr. Bryan Loeffler, a board-certified orthopedic surgeon, was deposed by the parties on 12 December 2023.  Dr. Loeffler testified that he first saw Plaintiff on 26 May 2020.  Dr. Loeffler testified that upon viewing Plaintiff's MRI, he "noted [Plaintiff] had no full thickness rotator cuff tearing.  There was an intrasubstance tear in the supraspinatus and a type II SLAP tear with mild AC joint arthritis" and that Plaintiff also had adhesive capsulitis.  Dr. Loeffler testified that he next saw Plaintiff on 7 July 2020 and that at that time Plaintiff's motion had improved with physical therapy but that he still had pain.  Dr. Loeffler further explained that surgery was discussed with Plaintiff on 18 August 2020 but that Plaintiff preferred to "think it over" rather than undergoing surgery.  Dr. Loeffler testified that he released Plaintiff with a 5% permanent partial disability rating and lifting restrictions on 15 September 2020 because Plaintiff "was content with non-operative treatment" and "didn't want to have the surgery."  Dr. Loeffler estimated that perhaps 25% of patients with Plaintiff's injury might choose to forego surgery.  Dr. Loeffler testified "basically the patient has to decide whether it's worth it for them to go through the surgery and rehabilitation or if they're content with living with it the way it is."  Dr. Loeffler testified that stiffness and persistence of pain were the main risks of the recommended surgery, that Plaintiff was not a high-risk patient, and that the procedure was a "pretty low risk" operation.  Dr. Loeffler also estimated that, were Plaintiff to undergo the surgery he recommended, Plaintiff would have an 80-90% probability of significant improvement to the mobility and function of his right shoulder, stated that the surgery is medically necessary for Plaintiff to get back to work and restore his wage-earning capacity, and expressed that it would be reasonable for Plaintiff to undergo the surgery.  When specifically asked whether Plaintiff needed the tenodesis surgery to restore his wage-earning capacity or to increase his lifting restrictions, Dr. Loeffler testified that "[the surgery] would give him the best chance at achieving those goals."  Dr. Loeffler identified Plaintiff as a prime candidate for this surgery.  Dr. Loeffler testified that the surgical recovery period would last "from four to six months" and that pain would wax and wane during that period. 
16.	Dr. Patrick Connor, a board-certified orthopedic surgeon with a subspecialty board certification in sports medicine, was deposed by the parties on 2 February 2024.  Dr. Connor testified that Plaintiff presented to him on 8 June 2021, that a procedure including a subacromial decompression, distal clavicle incision, and biceps tenodesis would be the best surgical option should Plaintiff decide to undergo surgery, and that there was no reason not to identify Plaintiff as a prime candidate for this surgery.  Dr. Connor testified that if Plaintiff had undergone the surgery when he initially recommended it, Plaintiff would have an "85 to 90 percent chance" of his pain being minimal or completely resolved.  Dr. Connor testified that it would be reasonable for Plaintiff to choose not to undergo surgery: "[t]he decision to have surgery or not . . . have surgery is completely the patient's decision, so yes, I think it's reasonable."  He also testified that it would be reasonable for Plaintiff to undergo surgery "if his subjective symptoms and limitations were such to where the patient felt that he wanted to proceed with surgery, with a full understanding of what that all meant, then yes, I would say that that would be reasonable."  Dr. Connor testified: 
typically I don't recommend surgery.  What I said is that if his pain is to where surgery would be an option, then the best surgery to have in that setting has been shown . . . to be . . . a biceps tenodesis, as opposed to trying to repair that labrum. 

He further explained: 
if the patient's pain and misery were such to where he elected to undergo surgery … the proper surgery for him to have had, had he chosen to have surgery would have been a decompression - a subacromial decompression, distal clavicle incision and a biceps tenodesis, and debridement of his superior labrum . . . which is what I suggested."  

Dr. Connor testified that the period of recovery from that surgery would be "[r]oughly about four months."  Dr. Connor testified that Plaintiff had reached non-surgical maximum medical improvement.  
Plaintiff has not sought medical treatment related to the 7 February 2020 injury since 8 June 2021.  Although Defendants are willing to provide it, Plaintiff has continued to decline to undergo surgical repair of his shoulder.  Plaintiff testified that he would not be able to perform any of the jobs listed on his resume with his current physical restrictions and that these jobs usually require an ability to lift 50-60 pounds.  Plaintiff also testified that he currently experiences pain in his right shoulder with some movements, that he tries to avoid these movements, and that he takes ibuprofen for pain as needed.  Plaintiff has not returned to work and continues to collect temporary total disability benefits under the Act at a rate of $1,066.00 per week.  
18.	Based upon a preponderance of the evidence in view of the entire record, the Full Commission finds that the surgery recommended to Plaintiff by Drs. Loeffler and Connor is reasonably required to effect a cure or give relief and would tend to lessen Plaintiff's period of disability.  Furthermore, this procedure is not risky, is not of uncertain benefit, and would require a relatively short recovery period.  In making this finding, the Full Commission notes that the testimony of Drs. Loeffler and Connor establishes that the surgery in question is not risky, that Plaintiff is a prime candidate for the surgery, that the surgery would have a high likelihood of improving the mobility and function of Plaintiff's right shoulder while reducing his pain, and that the surgery would require a recovery period of 4-6 months.      
19.	Based upon a preponderance of the evidence in view of the entire record, the Full Commission finds that a reasonable person motivated to improve his health would undergo the surgery recommended to Plaintiff by Drs. Loeffler and Connor in this case.  In making this finding, the Full Commission notes that the testimony of Drs. Loeffler and Connor establishes that the surgery in question is not risky, that Plaintiff is a prime candidate for the surgery, that the surgery would have a high likelihood of improving the mobility and function of Plaintiff's right shoulder while reducing his pain, and that the surgery would require a recovery period of 4-6 months.
20.	Based upon a preponderance of the evidence in view of the entire record, the Full Commission finds that should Plaintiff decline to undergo surgery, he has reached the end of the healing period and will be at maximum medical improvement regarding his compensable right shoulder injury.  In making this finding, the Full Commission notes the testimony of Drs. Loeffler and Connor on this topic as well as Dr. Loeffler's 15 September 2020 release of Plaintiff at non-surgical maximum medical improvement.
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Based upon the foregoing Stipulations and Findings of Fact, the Full Commission makes the following:
CONCLUSIONS OF LAW
On 7 February 2020, Plaintiff sustained an admittedly compensable injury to his right shoulder.  N.C. Gen. Stat.§ § 97-2(6); 97-18(b) (2023). 
In claims of accepted compensability, the employer is required to provide Plaintiff's medical treatment and has the general right to direct medical treatment.  N.C. Gen. Stat. § 97-25(a) (2023); see also Schofield v. Great Atl. & Pac. Tea Co., 299 N.C. 582, 264 S.E.2d 56 (1980).  In this case, Defendants have provided medical treatment and have authorized shoulder surgery which Plaintiff has declined to undergo.
Medical treatment is defined by the Act as medical or rehabilitation services prescribed by a health care provider and authorized by the employer or the Commission that may reasonably be required to effect a cure or give relief and would tend to lessen the period of disability.  N.C. Gen. Stat. § 97-2(19) (2023).  The surgery recommended to Plaintiff by Drs. Loeffler and Connor constitutes medical treatment reasonably required to provide relief and lessen Plaintiff's period of disability.  Id.
N.C. Gen. Stat. § 97-25(d) (2023) provides:
The refusal of the employee to accept any medical compensation when ordered by the Industrial Commission shall bar the employee from further compensation until such refusal ceases, and no compensation shall at any time be paid for the period of suspension unless in the opinion of the Industrial Commission the circumstances justified the refusal.

In the context of surgery recommended to an injured worker, "[t]he general rule is that where the surgery is of serious magnitude and risk, involves much pain and suffering and is of uncertain benefit, the refusal of the claimant to undergo surgery is reasonable and will not prejudice his claim."  Crawley v. Southern Devices, Inc., 31 N.C. App. 284, 290; 229 S.E.2d 325, 329 (1976).  In Watkins v. City of Asheville, the Court of Appeals considered a case involving an injured worker who refused to undergo a lumbar laminectomy, and, finding "sufficient evidence . . . that the surgery is not of serious magnitude and risk, does not involve much pain and suffering and is not of uncertain benefit," affirmed the Industrial Commission's determination that the injured worker had to undergo the surgery or forgo workers' compensation benefits. 99 N.C. App. 302, 306, 392 S.E. 2d 754, 757 (1990).  In Johnson v. Jones Group, the Court of Appeals construed the Watkins decision, holding that it set forth "a 'reasonableness' test to the decision of whether to deny benefits to a claimant refusing treatment, i.e., an analysis of whether a reasonable person who is motivated to improve his or her health would accept the proffered treatment." 123 N.C. App. 219, 225, 472 S.E. 2d 587, 590 (1996). 
In this case, the surgery recommended to Plaintiff by Drs. Loeffler and Connor, like the lumbar laminectomy in Watkins, has a high probability of significantly reducing Plaintiff's period of disability and would be sought by a similarly situated reasonable person.  In making this conclusion the Full Commission notes that the recommended surgery is not risky and would require a relatively short recovery period.  Therefore, pursuant to the Act, Plaintiff must be denied workers' compensation benefits should he refuse to undergo this surgery.  N.C. Gen. Stat. § 97-25(d) (2023); Watkins v. City of Asheville, 99 N.C. App. 302, 392 S.E. 2d 325 1990).    
6.	Maximum medical improvement refers to the point at which a claimant's injury has stabilized and the healing period has ended and is the first point at which an injured worker can elect to receive payment for permanent partial disability benefits pursuant to N.C. Gen. Stat. § 97-31 for a scheduled body part.  Knight v. Wal-Mart Stores, Inc., 149 N.C. App. 1, 12-13, 562 S.E.2d 434, 443-444, aff'd per curiam, 357 N.C. 44, 577 S.E.2d 620 (2003).  The Full Commission concludes that should Plaintiff, who has not sought medical treatment since June 2021, decline the surgery he is hereinafter ordered to undergo, he will have reached the end of the healing period and will be at maximum medical improvement regarding his compensable right shoulder injury. Id.   
7.	The Full Commission concludes that should Plaintiff decline the surgery he is hereinafter ordered to undergo, Plaintiff would no longer be entitled to continuing temporary total disability benefits.  N.C. Gen. Stat. § 97-25(d) (2023); Watkins v. City of Asheville, 99 N.C. App. 302, 392 S.E. 2d 325 (1990).    
8.	Should Plaintiff decline the surgery he is hereinafter ordered to undergo, Plaintiff has sustained a 5% permanent partial disability of his right shoulder, for which Plaintiff is entitled to compensation at a rate of $1066.00 for a period of 12 weeks, for a total of $12,792.00.  N.C. Gen. Stat. § 97-31(13) (2023).
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	Based upon the foregoing Stipulations, Findings of Fact, and Conclusions of Law, the Full Commission enters the following:
A W A R D
Plaintiff shall undergo the recommended tenodesis procedure with either Dr. Loeffler or Dr. Connor, as directed by Defendants, or be subject to the provisions of paragraph 2 below.  Plaintiff shall have 45 days from the filing of this Opinion and Award to notify Defendants in writing if he is declining to undergo the recommended surgery. 
2.	Should Plaintiff refuse to undergo this surgery, Plaintiff shall be deemed to have reached maximum medical improvement regarding his compensable right shoulder injury.  In the event that Plaintiff refuses to undergo this surgery, Defendants shall no longer be required to pay Plaintiff temporary total disability benefits and, subject to the attorney's fee and credit approved below, shall pay Plaintiff for the 5% permanent partial disability of his right shoulder, for which Plaintiff is entitled to compensation at a rate of $1066.00 for a period of 12 weeks, for a total of $12,792.00.   
3.	A reasonable attorney's fee of twenty-five percent of any compensation due Plaintiff under paragraph 2 of this Award is approved for Plaintiff's counsel and shall be paid as follows: Plaintiff's counsel shall receive 25% of the lump sum due Plaintiff.
4.	Defendants are entitled to a credit in the amount of $1,141.88 for payment of Plaintiff's share of the mediation costs.  This amount may be deducted from payment of the permanent partial impairment rating or from future temporary total disability benefits. 

Chair BADDOUR and Commissioner PHILLIPS concur. 

 This matter was heard by former Deputy Commissioner Jesse Tillman on 29 September 2023 and was transferred to Deputy Commissioner Hullender following former Deputy Commissioner Tillman's departure from the Industrial Commission.

I.C. NO. 20-006142 		Page 2