Edwards v Southern Maintenance
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e . NO. COA11-509 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 CHARLES EDWARDS, Employee, Plaintiff, v. North Carolina Industrial Commission I.C. No. 650613 SOUTHERN MAINTENANCE OF HAYWOOD COUNTY, Employer, PENNSYLVANIA NATIONAL INSURANCE COMPANY, Carrier, Defendants. Appeal 20 January by 2011 defendants by the from North Opinion Carolina and Award Industrial entered Commission. Heard in the Court of Appeals 10 October 2011. Law Offices of David Gantt, by David Gantt, for plaintiff appellee. Cranfill Sumner & Hartzog LLP, by Rebecca L. Thomas and Ashley Baker White, for defendants appellants. MARTIN, Chief Judge. Defendant employer Southern Maintenance of Haywood County and defendant carrier Pennsylvania National Insurance Company -2(collectively defendants ) appeal from an Opinion and Award by the North Carolina Industrial Commission ( the Commission ) awarding temporary total disability compensation to Charles Edwards. plaintiff We affirm. The parties agree that on 7 August 2006, plaintiff, who was then sixty-three years old, sustained an injury by accident during the course of his employment with defendant employer, a general contractor, when plaintiff fell approximately twelve feet from a ladder onto a concrete floor. ten to At the time of his accident, plaintiff had been employed by defendant employer as a working supervisor for approximately twenty-six years. Plaintiff s job was physically demanding, requiring very heavy lifting of over 100 pounds at times, and included such duties as shoveling, running and backhoes, weed-eating. laying As a pipe, result concrete of the work, accident, plaintiff was diagnosed with a closed traumatic brain injury with a basilar skull fracture and rib fractures. Defendants accepted the claim as compensable and plaintiff stayed out of work due to his injuries from 8 August 2006 through 12 November 2006, and then again from 30 March 2007 through 22 May 2007. When plaintiff returned to work, he was restricted to lifting no more than 50 pounds and was not to work on any tasks that were above shoulder level or required neck extension. Although there -3is evidence in the record that plaintiff continued to work at least 40 hours per week for more than fourteen months after he returned to work following his injury, the Commission found that, after his fall, plaintiff lost his balance often on the job, was unable to lift as much as before, and appeared to have less stamina, hours. Plaintiff tiring was after assigned working a only combined two or three 25% permanent partial disability rating based on his traumatic brain injury, cervical spine injury, and cranial nerve I neuropathy. Plaintiff retired on 21 August 2008, one week before his sixtysixth birthday. The parties were unable to agree as to whether plaintiff was entitled to ongoing temporary total disability payments after his retirement; defendants contended plaintiff was only entitled to permanent partial disability benefits under N.C.G.S. § 97-31. The matter was assigned to a deputy commissioner for hearing; the deputy commissioner issued an Opinion and Award ordering defendants plaintiff Commission. from to pay 22 August total 2008 disability until further compensation order of to the Defendants appealed to the Full Commission, which entered its Opinion and Award in which it concluded that, while plaintiff may be able to perform some work, due to the extent and nature of [his] injuries, his permanent work restrictions, -4his educational background, his work experience in the construction trade, the vocational assessments obtained, and his age, it would be futile for plaintiff to seek employment, and ordered defendants compensation to beginning pay temporary 22 August 2008 further order of the Commission. total and disability continuing Defendants appeal until to this Court. _________________________ The scope of our review of an Opinion and Award of the Industrial Commission is well-established. Under our Workers Compensation Act, the Commission is the fact finding body. Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Brewer v. Powers Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)), reh g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433 34, 144 S.E.2d 272, 274 (1965)). appeal, this Court does not have the right to [O]n weigh evidence and decide the issue on the basis of its weight. the The [C]ourt s duty goes no further than to determine whether the record contains any evidence tending to support the finding. Id. at 681, 509 S.E.2d at 414 (quoting Anderson, 265 N.C. at -5434, 144 S.E.2d at 274). [T]he findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary. Id. (quoting Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965) (per curiam)). The evidence tending to support plaintiff s claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence. Id. (citing Doggett v. S. Atl. Warehouse Co., 212 N.C. 599, 601, 194 S.E. 111, 113 (1937)). When used within the North Carolina Workers Compensation Act, [t]he term disability means 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. N.C. Gen. Stat. § 97-2(9) (2009); see also Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 574, 139 S.E.2d 857, 861 (1965) ( [D]isability refers not to physical infirmity but to a diminished capacity to earn money. ). In order to support a conclusion of disability, the plaintiff has the burden of showing, and the Commission must find, (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 -6after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual s incapacity to earn was caused by plaintiff s injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). The employee may meet his burden of establishing that he was incapable of earning the same wages after his workrelated injury in either the same or any other employment in one of four ways: (1) (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) Russell 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; the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury. v. Lowes Prod. Distrib n, 108 N.C. App. 425 S.E.2d 454, 457 (1993) (citations omitted). The Commission found, inter alia: 16. Plaintiff continued to work for 762, 765, -7approximately one year following his return to Defendant Employer. However, the heavy manual labor of the job aggravated his neck pain. Plaintiff testified before the Deputy Commissioner that the grip strength in his hands was weakened, which made it difficult for him to grip the wheelbarrow and roll heavy loads. He could not work above his shoulders and was limited in his lifting. He did not do tasks requiring climbing anymore because his balance was not good. He often required assistance from other workers [to] perform his work. Plaintiff stated that he wanted to continue working two to three days per week but the way I am right now, I can t do it. . . . . 23. The Full Commission finds that although Plaintiff returned to work for Defendant Employer, he was unable to perform his pre-injury job fully and required regular assistance from his co-workers. Defendants argue that neither of these findings is supported by competent evidence because they are contrary to testimony offered by two of defendants witnesses, and because plaintiff did not complain about his co-workers or his supervisor. physical limitations to his Nevertheless, our courts have long held, as is true in the present case, even though there be evidence that would support findings to the contrary, see Adams, 349 N.C. (quoting Jones, at 681, 264 N.C. 509 S.E.2d at 402, at 414 (emphasis 141 S.E.2d at added) 633), a -8plaintiff s own testimony is competent evidence to support the Commission s findings that he was unable to fully perform the functions of his work. Ins. Co., 88 N.C. See, e.g., Niple v. Seawell Realty & App. 136, 139, 362 S.E.2d 572, 574 (1987) ( [P]laintiff s own testimony regarding her limited ability to engage in any activity and the effect that physical exertion has upon her is competent evidence as to her ability to work. ), disc. review denied, 321 N.C. 744, 365 S.E.2d 903 (1988). Additionally, in this case, the Commission also found, based on the testimony of plaintiff s son who worked with his father before and after the injury, that plaintiff lost his balance often on the job and was unable to lift as much as before. He also appeared to have less stamina, tiring after working only two or three hours. finding. Thus, plaintiff, we when Defendants viewed conclude that in have the there not light is challenged most this favorable to evidence to competent support Findings of Fact 16 and 23. Defendants next argue that the Commission erred by apparently giving greater weight to the testimony of Bentley Hankins, a vocational rehabilitation specialist for plaintiff, witness, Jack than it gave to the testimony Dainty, a certified who testified of defendants disability management specialist, and by concluding that plaintiff established that he -9is capable of some work but that it would be futile for him to seek other employment. 425 S.E.2d at 457. See Russell, other App. at 765, The Commission found, based on Mr. Hankins opinion, that [p]laintiff s work with 108 N.C. relevant vocational restrictions in combination factors such as age, prior educational attainment, and lack of any other skills in any trade other than [p]laintiff s construction, ability to obtain significantly suitable reduced employment. Mr. Dainty, on the other hand, was of the opinion that plaintiff did possess skills which were transferable to other jobs, and that jobs within his capability market. Mr. Hankins findings, and, because existed it is the local supports testimony within the Commission s the Commission s solely within labor purview to determine the weight and credibility of competing testimony, see Adams, 349 N.C. at 680, 509 S.E.2d at 413, we decline defendants invitation to re-weigh that testimony against that of Mr. Dainty. Defendants supported by next argue competent that, evidence, even the if these findings Commission could are not properly conclude that plaintiff was disabled because there was evidence in the record that plaintiff continued to work an average of over 40 hours per week at his regular hourly rate during the fourteen months he worked following his injury until -10he retired in August 2008. However, the evidence also showed that, in the fourteen months after his injury and prior to his retirement, even though plaintiff was paid for working about 40 hours a week, plaintiff actually worked an average of thirty to forty hours per month less than he had worked prior to his injury in mid-2006. Moreover, [t]he statement . . . that there is no disability if the employee is receiving the same wages in the same or other employment is correct only so long as the employment reflects the employee s ability to earn wages in the competitive market. Peoples v. Cone Mills Corp., 316 N.C. 426, 440, 342 S.E.2d 798, 807 (1986); see id. at 437, 342 S.E.2d at 805 06 ( If post-injury earnings do not reflect this ability to compete with others for wages, they are not a proper measure of earning capacity. ). Since we have already concluded that there was competent evidence to support the Commission s findings that plaintiff without was unable assistance to from perform other his pre-injury workers, that job fully plaintiff was incapable of continuing to work in the physically demanding position of working supervisor, and that, although plaintiff was capable of some work, it would be futile for him to seek other employment, favorable when to without merit. viewing plaintiff, the we evidence must in conclude the this light most argument is -11Finally, defendants contend the Commission could not have properly found that plaintiff established the first Hilliard factor that plaintiff was incapable of earning the same wages in the same employment after his injury because plaintiff went out of work by choice when he retired just before his sixtysixth birthday. (Emphasis added.) Nevertheless, as defendants concede, [b]ecause disability measures an employee s present ability to earn wages, and is unrelated to a decision to withdraw from the labor force by retirement, the Commission may not deny disability benefits because the claimant retired where there is evidence of diminished earning capacity caused by an occupational disease. Heffner v. Cone Mills Corp., 83 N.C. App. 84, 88, 349 S.E.2d 70, 74 (1986) (citation omitted). Since we have already determined that the Commission made findings based on competent evidence presented by plaintiff in support of the Commission s accordance with conclusion the third that prong plaintiff of is Russell, disabled see White in v. Weyerhaeuser Co., 167 N.C. App. 658, 672 n.3, 606 S.E.2d 389, 399 n.3 (2005), we conclude defendants contentions with respect to this issue are also without merit. We decline to consider the remaining assertions raised in defendants brief for which supporting legal authority. defendants failed to See N.C.R. App. P. 28(b)(6). present -12Affirmed. Judges GEER and STROUD concur. Report per Rule 30(e).
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