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March 18, 2026 Get Citation Alerts Download PDF Add Note

Valenzuela v. Delhaize Am., LLC

Court of Appeals of North Carolina

• Citations: None known
• Docket Number: 25-537

• Precedential Status: Non-Precedential

• Opinion

• Authorities (21)

• Cited By (0)

• Summaries (0)

• Similar Cases (9.8K)

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Syllabus

second opinion evaluation, temporary partial disability, wage records

Combined Opinion

                        by Judge Chris Dillon

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 25-537

Filed 18 March 2026

North Carolina Industrial Commission I.C. No. 20-033144

OBEDINA ACOSTA VALENZUELA, Employee, Plaintiff,

v.

DELHAIZE AMERICA, LLC d/b/a FOOD LION, LLC, Employer, SELF-INSURED
(RETAIL BUSINESS SERVICES, LLC, Third Party Administrator), Defendant.

Appeal by plaintiff from opinion and award entered 7 February 2025 by the

Full Commission of the North Carolina Industrial Commission. Heard in the Court

of Appeals 15 January 2026.

Barba Law Firm, PLLC, by Milton E. Barba, for plaintiff-appellant.

Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones, for defendant-
appellee.

DILLON, Chief Judge.

Plaintiff Obedina Acosta Valenzuela appeals from opinion and award entered

on 7 February 2025 by the North Carolina Industrial Commission in which the

Commission concluded: (1) Plaintiff was not entitled to a comprehensive second

opinion evaluation pursuant to G.S. 97-25(b)–(c); (2) Plaintiff was not entitled to

temporary partial disability benefits for the ten weeks she worked reduced hours; (3)
VALENZUELA V. DELHAIZE AM., LLC

Opinion of the Court

Plaintiff’s $600.00 fee to obtain her wage and employment records was not an undue

burden or expense; and (4) Plaintiff was not entitled to fees and costs under G.S. 97-

88.1 based on Defendant Food Lion, LLC’s defense of Plaintiff’s claim. For the

reasons below, we affirm.

I. Background

While working as a part-time Deli Bakery Associate for Defendant, Plaintiff

“hit [ ] the container that had the oil and the edge [ ] cut [ ] into [her] foot.” Plaintiff

sustained a laceration on her lower right leg (“compensable injury”). Plaintiff’s

compensable injury measured approximately five centimeters in length, two

centimeters in depth, and Betsy Johnson Hospital (“BJH”) sutured Plaintiff’s

laceration the day of the injury. BJH instructed Plaintiff to remain non-weight

bearing for the next three to five days. Five days later, on 21 August 2020, Plaintiff

returned to work with Defendant in the same role.

Following Plaintiff’s 16 August 2020 compensable injury, Plaintiff visited

various doctors and health care providers over the course of the next few months. On

a visit to Coats Medical Services two days after Plaintiff’s compensable injury, a Dr.

Breen did not assign Plaintiff any work restrictions.

In medical records dated 5 November 2020 through 19 December 2022,

Plaintiff did not complain about the compensable injury. On 20 December 2022, a

physical exam of Plaintiff’s lower right extremity presented normal.

Approximately two months following the December visit, on 18 February 2022,

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Opinion of the Court

Plaintiff filed a Form 18 indicating she sustained an injury while working with

Defendant. On 21 June 2022, Plaintiff voluntarily resigned from Defendant. On 14

July 2022, Defendant filed a Form 60 accepting compensability for a 16 August 2020

compensable injury of a “right lower leg laceration.” In September 2022, Plaintiff

began working part-time at Carolina Coastal Community College (“CCCC”) as a

second language instructor.1

On 10 July 2023, Plaintiff underwent an independent medical examination

(“IME”) at the request of her Worker’s Compensation carrier with Brian Szura, MD,

at UNC Cary Orthopedics and Sports Medicine Specialists. Dr. Szura placed Plaintiff

at maximum medical improvement (“MMI”) for the compensable injury and provided

Plaintiff with a three percent permanent partial impairment (“PPI”) rating. Dr.

Szura did not assign work restrictions. The Commission awarded Plaintiff $940.86

for six weeks of compensation for the three percent PPI.

During the time Plaintiff worked part-time with Defendant, she also worked

full-time at McDonald’s. At the time Plaintiff voluntarily resigned with Defendant

she continued working full-time at McDonald’s.

II. Analysis

Plaintiff presents four arguments on appeal. We address each in turn.

1 Plaintiff testified she worked at a local bar and grille as well as a Cookout during the period

from when she left Defendant to when she started at CCCC. However, the Commission did not make
findings regarding such employment, thus, it is omitted herein.

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VALENZUELA V. DELHAIZE AM., LLC

Opinion of the Court

A. General Statute 97-25(b)–(c)

Plaintiff argues the Commission erred by denying her request for a second

opinion examination pursuant to G.S. 97-25(b) because during the 2023 IME visit Dr.

Szura, he discussed “desensitization techniques,” and this discussion shows a second

opinion is reasonably necessary. We disagree and affirm the Commission’s

determination.

General Statute 97-25 “leaves the approval of a physician within the discretion

of the Commission, and its determination may only be reversed upon finding a

manifest abuse of discretion.” Franklin v. Broyhill Furniture Indus., 123 N.C. App.

200, 207–08 (1996) (citing White v. White, 312 N.C. 770, 777 (1985)). The North

Carolina legislature updated the statute in 2011 granting initial discretion to grant

or deny a second opinion evaluation to a worker’s employer.2 See N.C.G.S. 97-25(b)

(2023) (“[T]he employer may agree to authorize and pay for a second opinion

examination[.]”) (emphasis added).

Presently, General Statute 97-25(b) requires a written request from employee

to employer for employee to obtain a second opinion examination. Id. If within

fourteen days following the employee’s request, the employer denies the request, or

the employer and employee cannot agree on a health care provider to provide the

second opinion examination, the employee may then request the Commission to order

2 See An Act Protecting and Putting North Carolina Back to Work by Reforming the Workers’

Compensation Act, S.L. 2011-287, § 6, 2011 N.C. Sess. Laws, 1087, 1089.

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VALENZUELA V. DELHAIZE AM., LLC

Opinion of the Court

a second opinion examination. Id.

Here, the Commission denied Plaintiff’s request to supplement the record with

a July 2023 email from Plaintiff’s counsel to Defendant’s counsel regarding a second

opinion evaluation. The Commission declined to decide on Plaintiff’s second opinion

request because it found Plaintiff failed to put such request properly before the

deputy commissioner.

The Commission then stated even assuming Plaintiff properly put the second

opinion request before the Commission, the Commission found a lack of sufficient

evidence to establish that Plaintiff submitted a written request to Defendant, or that

Defendant denied a request, as required by G.S. 97-25(b). The Commission then

concluded “Plaintiff failed to show compliance with the parameters of [G.S.] 97-25(b)

to properly request a second opinion evaluation . . . the Commission concludes [ ]

Plaintiff has not shown sufficient or good grounds to order a second opinion

evaluation[.]”

We conclude the Commission did not abuse its discretion in denying Plaintiff’s

second opinion examination because there is no written request from employee to

employer or to Commission requesting such. Alternatively, we conclude the

Commission did not abuse its discretion in denying Plaintiff’s request for a second

opinion.

Related to Plaintiff’s G.S. 97-25(b) argument, Plaintiff contends the

Commission erred by denying Plaintiff’s request to change her treating physician

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VALENZUELA V. DELHAIZE AM., LLC

Opinion of the Court

under G.S. 97-25(c). We conclude the Commission did not err in denying Plaintiff’s

request based on its determination that Plaintiff failed to meet her burden that a

change in her physician could cure, provide relief, or lessen the compensable injury.

See N.C.G.S. § 97-25(c) (2023).

A change in a treating physician or treatment is subject to the Industrial

Commission’s approval and “the employee must show by a preponderance of the

evidence that the change is reasonably necessary to effect a cure, provide relief, or

lessen the period of disability.” Id. (Emphasis added).

Here, the Commission found Plaintiff did not raise the G.S. 97-25(c) issue

before the deputy commissioner and declined to render a decision on the issue.

Nonetheless, the Commission found “[b]ased on the preponderance of the evidence in

view of the entire record . . . Plaintiff has not shown, what, if any, additional

treatment for her right leg injury is needed.” Specifically, the Commission found

Plaintiff’s medical records devoid of any reference to a right leg injury from 5

November 2020 through 23 July 2023. The Commission found during the 10 July

2023 IME visit, Dr. Szura stated “[i]t is unlikely that further intervention will be of

a significant benefit” and he placed Plaintiff at MMI with a three percent PPI rating

for the compensable injury.

These findings are supported by record evidence. Plaintiff testified no medical

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VALENZUELA V. DELHAIZE AM., LLC

Opinion of the Court

provider assigned “work restrictions”3 since her initial 16 August 2020 visit to BJH.

Second, Plaintiff admitted that a 20 December 2022 exam of her right leg presented

normal. Third, Plaintiff’s testimony reflected her understanding that Dr. Szura did

not provide her work restrictions in July 2023. Fourth, Dr. Szura’s July 2023 IME

report confirmed no work restrictions for Plaintiff, she reached MMI, and “further

intervention” would be unlikely to improve Plaintiff’s situation.

Accordingly, the Commission determined Plaintiff “has not shown a change in

medical providers could effect a cure, provide relief, or lessen Plaintiff’s period of

disability – especially considering she also lacks permanent work restrictions.” Thus,

we conclude Plaintiff failed to show by a preponderance of the evidence that a

physician change was necessary and the Commission’s did not err in denying

Plaintiff’s alleged request to change medical provider(s) or treatment.

B. Disability Compensation

Plaintiff contends the Commission’s denial of temporary partial disability

(“TPD”) benefits under G.S. 97-29 for the ten weeks Plaintiff worked reduced hours

is error because she established a loss of wage-earning capacity. For the reasons

below, the Commission’s findings are supported by competent evidence, and it

properly concluded Plaintiff failed to present evidence supporting a diminished wage-

3 BJH told Plaintiff to remain non-weight bearing for three to five days which the Commission

did not categorize as a work restriction in its finding. However, during cross-examination of Plaintiff,
Defendant’s counsel characterized these three to five days as a work restriction.

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VALENZUELA V. DELHAIZE AM., LLC

Opinion of the Court

earning capacity because of the compensable injury.

Appellate review of the Commission's opinion and award considers “whether

competent evidence supports the Commission's findings of fact and whether the

findings support the Commission's conclusions of law.” Richardson v. Maxim

Healthcare/Allegis Group, 362 N.C. 657, 660 (2008) (citation omitted). Our analysis

“goes no further than to determine whether the record contains any evidence tending

to support the finding.” Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433–34 (1965).

See Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 108 (2000) (citation omitted)

(“The determination of whether a disability exists is a conclusion of law that must be

based upon findings of fact supported by competent evidence.”). Conclusions of law

are reviewed de novo. Lewis v. Sonoco Prods. Co., 137 N.C. App. 61, 68 (2000)

(citation omitted).

To support a conclusion of disability, the Commission must find three

elements:

(1) that plaintiff was incapable after his injury of earning
the same wages he had earned before his injury in the same
employment, (2) that plaintiff was incapable after his
injury of earning the same wages he had earned before his
injury in any other employment, and (3) that [plaintiff’s]
incapacity to earn was caused by plaintiff’s injury.

Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595 (1982) (citation omitted).

The claimant bears the burden of proving the existence and extent of her

disability by meeting each of those three elements. Clark v. Wal-Mart, 360 N.C. 41,

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VALENZUELA V. DELHAIZE AM., LLC

Opinion of the Court

43 (2005) (citation omitted). A claimant may prove the first two elements of Hilliard

by any of the four methods in Russell v. Lowes Prod. Distrib.:

(1) the production of medical evidence that he is physically
or mentally, as a consequence of the work related injury,
incapable of work in any employment; (2) the production of
evidence that he is capable of some work, but that he has,
after a reasonable effort on his part, been unsuccessful in
his effort to obtain employment; (3) the production of
evidence that he is capable of some work but that it would
be futile because of preexisting conditions, i.e., age,
inexperience, lack of education, to seek other employment;
or (4) the production of evidence that he has obtained other
employment at a wage less than that earned prior to the
injury.

108 N.C. App 762, 765 (1993) (cleaned up). These four methods are not an exhaustive

list, nor statutory, of how to establish the first two elements of Hilliard. Medlin v.

Weaver Cooke Constr., LLC, 367 N.C. 414, 422 (2014). As for the third element of

Hilliard, also known as the statutory causation element, a claimant proves such “by

proving that his inability to obtain equally well-paying work is because of his work-

related injury.” Id.; see also N.C.G.S. § 97-2(9) (2023) (defining disability as

“incapacity because of injury to earn the wages which the employee was receiving at

the time of injury in the same or any other employment[ ]”).

However, “the fact that an employee is capable of performing employment

tendered by the employer [post-injury] is not, as a matter of law, an indication of

plaintiff’s ability to earn wages.” Saums v. Raleigh Cmty. Hosp., 346 N.C. 760, 764

(1997) (citation omitted). A plaintiff’s ability to work in the same position must be

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VALENZUELA V. DELHAIZE AM., LLC

Opinion of the Court

considered in conjunction with whether the employer has modified the position to

accommodate the employee’s injury, and thus, whether such post-injury position

would be “ordinarily available in the competitive job market.” Peoples v. Cone Mills

Corp., 316 N.C. 426, 438 (1986). The true test is whether “the wage that would have

been paid in the open market under normal employment conditions [is being paid] to

[the employee] as injured.” Id. at 437. (Citation and emphasis omitted).

The Commission found Plaintiff returned to work with Defendant five days

after the compensable injury. This finding is supported by Plaintiff’s testimony and

Defendant’s Worker’s Compensation Initial Report. The Commission also found the

absence of any post-injury wage records indicating Plaintiff worked less hours or

earned less wages with Defendant following the compensable injury. Additionally,

following the compensable injury, the Commission found Plaintiff returned

to/continued her role at McDonald’s. Plaintiff also continued working for Defendant

for nearly a year after the compensable injury, until 22 June 2021. The Commission

found Plaintiff voluntarily resigned from her position at Defendant to find a better

job.4 The Commission based this finding on Plaintiff’s testimony, as well as the

testimony of Defendant’s store manager who stated, “[Plaintiff] quit because she got

4 Defendant does not label Plaintiff’s resignation as a voluntary refusal of suitable
employment. But see White v. Weyerhaeuser Co., 167 N.C. App. 658, 665 (2005) (citation omitted)
(stating when termination is voluntary and “employer meets its burden of showing that a plaintiff
unjustifiably refused suitable employment, then the employee is not entitled to further benefits under
. . . G.S. 97-30 [partial incapacity].” See also N.C.G.S. § 97-32 (2023). We do not consider this issue.
N.C. R. App. P. 28(b)(6) (“Issues not presented in a party’s brief, or in support of which no reason or
argument is stated, will be taken as abandoned.”).

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Opinion of the Court

full time at [McDonald’s] . . . we tried to get her to stay but we did not have a full time

opening at that time.”5

Here, Plaintiff cannot establish the third, statutory Hilliard element proving

she is earning less or suffers from a diminished wage capacity because of her

compensable injury. First, record evidence indicates Plaintiff is making more after

her work injury as compared to prior to the work injury. Second, the Commission’s

findings are supported by record evidence showing Plaintiff continued working with

Defendant and McDonald’s following the injury and there is no indication either

employer altered the position due to Plaintiff’s compensable injury. Third, Plaintiff

never received formal work restrictions, rather, Plaintiff’s only limitation was to

remain non-weight bearing for three to five days following the compensable injury.6

And while “[t]he fact that an employee is capable of performing employment

tendered by the employer [post-injury] is not, as a matter of law, an indication of

plaintiff’s ability to earn wages,” Saums, 346 N.C. at 764, here, Plaintiff did so in the

same position with no work restrictions. Therefore, the record evidence is competent

to support the Commission’s findings indicating Plaintiff is not entitled to TPD

because she cannot establish diminished wage-earning capacity because of the

5 The Commission recited Plaintiff’s testimony regarding her resignation with Defendant due

to pain. However, the Commission evidently did not find this testimony convincing. See Branham v.
Panel Co., 223 N.C. 233, 236 (1943) (“The [Workmen’s Compensation Act] provides no compensation
for physical pain or discomfort. It is limited to the loss of ability to earn.”).
6 See also Cross v. Falk Integrated Techs., Inc., 190 N.C. App. 274, 281 (2008) (reasoning in

part the lack of work restrictions following a compensable work injury supports a conclusion under the
non-statutory Russell factors that a plaintiff is not disabled).

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Opinion of the Court

compensable injury. As such, the Commission’s conclusion of law indicating “Plaintiff

has not presented sufficient evidence otherwise showing she suffered a reduced wage-

earning capacity . . . as a result of her [compensable injury]” is supported by the

findings.

C. Wage Record Request

Plaintiff argues Defendant’s request of her wage and employment records from

McDonald’s—Plaintiff’s other employer around the time her compensable injury

occurred—constituted an undue burden or expense because Plaintiff could not afford

her diabetes medicine and the wage and employment records request cost four times

Plaintiff’s compensation rate. We conclude the Commission did not abuse its

discretion in concluding this request was not an undue burden or expense.

Failure to produce a wage record as requested by an opposing party is a

discovery issue subject to abuse of discretion review. Midkiff v. Compton, 204 N.C.

App. 21, 24 (2010) (citation omitted); see also Stanback v. Stanback, 287 N.C. 448,

459 (1975). An abuse of discretion is present “where [the Commission’s] ruling is

manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision.” Midkiff, 204 N.C. App. at 24 (citing State v. Hennis,

323 N.C. 279, 285 (1988)).

Plaintiff indicated it would have cost her $600.00 to obtain her wage records.

Plaintiff based this cost on a statement from “Christy Oswald” at McDonald’s who

told Plaintiff the cost would be $5.00/paystub for a total of around $600.00. Ms.

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Opinion of the Court

Oswald’s statement is Plaintiff’s sole reference regarding the validity of the cost to

obtain the wage records. Plaintiff asserts she did not deny Defendant’s discovery

request to submit the wage records, rather, the cost of such effectively prohibited her

from complying with Defendant’s request. A special deputy commissioner ordered

Plaintiff to produce the wage records and Plaintiff thereafter requested a hearing to

prove her entitlement to disability benefits.

Rule 26(c) of the North Carolina Rules of Civil Procedure permit a party to seek

a protective order as a safeguard “from unreasonable annoyance, embarrassment,

oppression, or undue burden or expense[.]” N.C.G.S. § 1A-1, Rule 26(c). In

consideration of whether a request is an undue burden or expense a “trial court must

consider the specific discovery sought and the factual circumstances of the party from

whom discovery is sought.” In re Accutane Litigation, 233 N.C. App. 319, 323 (2014)

(citations omitted).

Here, the Commission found Defendant’s request of “Plaintiff’s post-injury

wage records from McDonald’s did not constitute an undue burden or expense given

the issues in this case[,]” nor that Plaintiff provided “sufficient evidence establishing

the cost to obtain her wage records from McDonald’s.” Further, the Commission

concluded such request did not constitute an undue burden or expense because

Plaintiff’s claim for TPD benefits “directly pertain[ed] to [Plaintiff’s] post-injury

wage-earning capacity, and any discovery request seeking records of [Plaintiff’s]

earnings after the injury is information necessary for litigation of [Plaintiff’s] claim[.]”

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Opinion of the Court

This Court concludes the Commission did not abuse its discretion in concluding the

wage record expense of $600.00 did not constitute an undue burden or expense

because the Commission’s request of the wage records directly related to Plaintiff’s

claim for TPD benefits and Plaintiff did not present evidence beyond what a Ms.

Oswald stated regarding the cost to produce the wage records.

D. Defense of Claim

Plaintiff argues she is entitled to recover her attorney’s fees, contending

Defendant’s defense is unreasonable. See N.C.G.S. § 97-88.1 (2023). We conclude the

Commission did not abuse its discretion in denying Plaintiff attorney’s fees.

The Industrial Commission’s decision to award attorney’s fees is subject to an

abuse of discretion review. Taylor v. J.P. Stevens Co., 307 N.C. 392, 394 (1983); see

also N.C.G.S. § 97-88.1 (2023) (emphasis added) (“If the Industrial Commission shall

determine that any hearing has been brought . . . without reasonable ground, it may

assess . . . reasonable [attorney’s fees].”). “The decision whether to award or deny

attorney’s fees rests within the sound discretion of the Commission and will not be

overturned absent a showing that the decision was manifestly unsupported by

reason.” Thompson v. Fed. Express, 175 N.C. App. 564, 570 (2006) (emphasis added)

(citation omitted). The test is whether the litigation is reasonable as opposed to being

“stubborn, unfounded litigiousness[.]” Sparks v. Mountain Breeze Rest. & Fish House,

Inc., 55 N.C. App. 663, 664 (1982). A reasonable defense is one grounded in “sound

legal principles” whereas stubborn or unfounded litigation has been characterized as

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Opinion of the Court

an insurer appealing to harass “an economically feeble employee[.]” Taylor, 307 N.C.

at 398.

Here, Plaintiff does not point at a specific aspect of Defendant’s defense as

unreasonable. Rather, Plaintiff recites a timeline of her claim against Defendant,

raises the three arguments above, and realleges the facts surrounding Plaintiff’s exit

from Defendant. The Commission concluded “Plaintiff has not shown that

Defendant’s defense of this claim was without reasonable grounds. Accordingly,

Plaintiff is not entitled to attorney[’s] fees and costs.” Based on these findings and

conclusions, the Commission did not abuse its discretion because Defendant’s defense

of each claim rested on good faith arguments. See West v. Hoyle’s Tire & Axle, LLC,

277 N.C. App. 196, 204 (2021).

III. Conclusion

This Court affirms the Commission’s decision and award.

AFFIRMED.

Judges HAMPSON and MURRY concur.

Report per Rule 30(e).

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