Schofield v. Great Atlantic & Pacific Tea Co.

HILL, Judge. The issues raised by the defendant appellant for our determination are: 1. Was the treatment received by the appellee of an emergency nature? 2. Was notice to and approval of the Commission and the defendant required prior to plaintiff’s treatment by Dr. Klenner? 3. When an employer notifies an employee of its refusal to pay medical costs incurred after a certain date and continues to appeal award decisions covering liability for surgical procedures made by the Industrial Commission favorable to the employee, is the matter temporarily removed from the jurisdiction of the Industrial Commission? The answer to the first and third questions is in the affirmative. The second question is answered in the negative. G.S. 97-25 provides that: If in an emergency on account of the employer’s failure to provide the medical or other care as herein specified a physician other than provided by the employer is called to treat the injured employee, the reasonable cost of such service shall be paid by the employer if so ordered by the Industrial Commission: Provided, however, if he so desires, an injured employee may select a physician of his own choosing to attend, prescribe, and assume the care and charge of his case, subject to the approval of the Industrial Commission. The defendant contends that an emergency does not exist over a 17-month period. G.S. 97-25 does not define an emergency. What may be an emergency under one set of circumstances may not qualify as such under another. Look at the record in this case: 1. Plaintiff was in Reidsville, and the physician and surgeon who had been treating him were in Charlotte. 2. The knee had swollen to four times its normal size. [572] 3. The knee was exuding pus in a stream the size of a man’s finger. 4. The testimony of Dr. Klenner indicated that the plaintiff was about to lose his leg or his life. 5. It was 11:00 p.m. when plaintiff sought treatment. 6. The defendant had notified the plaintiff that it would not be responsible for the cost of medical care after 5 June 1974. Hence it was incumbent on the plaintiff to look after himself. The Commission found these facts to constitute an emergency. We agree. The employer contends that G.S. 97-25 was not intended to include routine day-to-day treatment provided over a long period (17 months in this case). We cannot say at which point there ceased to be an emergency, but the facts indicate that one did exist on 9 April 1976. Accordingly, under the provisions of G.S. 97-25, Dr. Klenner must be reimbursed by defendant for the emergency treatment. Furthermore, plaintiff was justified in continuing his treatment with Dr. Klenner. The last sentence of G.S. 97-25 makes it clear that plaintiff had the right to select a physician of his own choosing, subject to the approval of the Industrial Commission, to “assume the care and charge of his case.” G.S. 97-25 (Emphasis added.) Considering the facts set out establishing the emergency, the Commission has ruled that plaintiff was justified in going to Dr. Klenner and justified in having the doctor assume the care and charge of his case. We concur. Further, the employer contends that it was providing treatment for the employee through Dr. Carr and Dr. Wrenn, both of whom were approved by the employer and the Industrial Commission, and it was the plaintiff’s failure to return to his approved physicians in Charlotte that precipitated his need for treatment for which he selected Dr. Klenner. We cannot agree. To reiterate what we have already stated, the defendant had notified the plaintiff that it would not be responsible for the costs of medical care after 5 June 1974. The plaintiff had every reason to believe that the defendant would not pay for treatment if he returned to [573] Charlotte. The defendant’s liability was established on 3 May 1977, well over a year after the emergency arose. During the interim, Dr. Klenner in Reidsville treated the plaintiff with massive doses of antibotics and “soaks” almost daily, and improvement continued. The record reveals that after six months, the plaintiff was ready for surgery, but not amputation; and the tissue was in good health, bone and otherwise, when the plaintiff went to Duke. The defendant contends the plaintiff failed to comply with his obligation to notify the Industrial Commission and the employer of his selection of a different physician. In order for the defendant to be responsible for the costs of the substitute physician, the Industrial Commission must approve of the change. G.S. 97-25. There is no requirement that such approval must be in advance of the change — only that the change must be approved. Dr. Klenner made claim, and the deputy commissioner and Full Commission approved the costs of medical care under the circumstances. We do not find an abuse of discretion here. The third question that must be answered concerns the nature of the Industrial Commission’s jurisdiction. When an appeal is made from judgment entered by a trial court, such court loses jurisdiction with limited exceptions during the appeal. Bowen v. Motor Co., 292 N.C. 633, 234 S.E. 2d 748 (1977); West v. Reddick, Inc., 38 N.C. App. 370, 248 S.E. 2d 112 (1978). The Industrial Commission is a quasi-trial court in this case, and lost its jurisdiction while the case was before this Court. However, this Court affirmed the award of the Commission for the payment of any additional medical treatment which will tend to lessen plaintiff’s disability. That order still stands. There was no reason to file claim with the Industrial Commission during appeal to this Court, or to notify such Commission that Dr. Klenner was substituted for the original doctors until further claim was made by him for approval by the Commission after the appeal was concluded. After the deputy commissioner entered his order directing an award to the plaintiff on 12 June 1978, the employer sought a stay of award on 28 June 1978 so that Dr. Frank Bassett of Duke [574] University Medical Center could testify as to the ineffectiveness of Dr. Klenner’s treatment. The deputy commissioner and Full Commission denied the request. The employer had his day in court. He should have taken action then. For the reasons set out above, the decision of the Full Commission is Affirmed. Judge ERWIN concurs. Judge VAUGHN dissents.