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opinions are subject to modification and technical correction prior to official
publication in the North Carolina Reports and North Carolina Court of Appeals
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authoritative.
NO.
COA06-1398
NORTH
CAROLINA COURT OF APPEALS
Filed:
4 September 2007
BOBBY BRITT,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 260559
GATOR WOOD, INC.,
Employer,
FIREMAN’S FUND INSURANCE COMPANY,
Carrier,
Defendants.
Appeal
by defendants from opinion and award entered 16 June 2006 by the North Carolina
Industrial Commission. Heard in the
Court of Appeals 9 May 2007.
Robert
A. Lauver for plaintiff-appellee.
Hedrick,
Eatman, Gardner & Kincheloe, L.L.P., by Jeffrey A. Doyle and Dana C. Moody,
for defendants-appellants.
GEER,
Judge.
Defendants
Gator Wood, Inc. and Fireman’s Fund Insurance Company appeal from an opinion
and award of the North Carolina Industrial Commission awarding disability and
medical compensation to plaintiff Bobby Britt.
Because the Commission’s findings of fact are supported by competent
evidence with respect to the award of temporary total disability compensation
for the period of 1 June 2002 through 16 June 2002 and for temporary partial
disability after 6 February 2003, we uphold the awards for those time periods. With respect, however, to the award of
temporary total disability compensation for the period of 13 January 2003
through 7 February 2003, we must remand for further factual findings under Russell
v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993).
Plaintiff
was hired in April 1999 by defendant-employer as a timber buyer. In this position, plaintiff scouted
properties, walked the land to demarcate areas for logging, measured trees,
negotiated prices, and performed title searches. Because defendant-employer had lost a major contract, plaintiff
was notified in April 2002 that he would be laid off, with his last day of work
being 31 May 2002.
On
1 May 2002, plaintiff sustained an admittedly compensable injury by accident
while working on a tract where defendant-employer was conducting logging
operations. Plaintiff stepped on a log,
lost his footing, and fell in an awkward, twisting manner. He landed hard with his right knee directly
striking the log. Despite the injury
and even though the knee ached, plaintiff continued to work. He did not seek immediate medical treatment,
as he hoped the pain would resolve itself.
After
a week had passed, during which the swelling and pain in the injured knee
continued, plaintiff saw Dr. Edward F. Hill.
Dr. Hill diagnosed plaintiff’s condition as a mild knee strain. Over the following weeks, the pain in
plaintiff’s knee became progressively worse, such that, by 31 May 2002, he was
physically incapable of performing the regular duties of his job as a timber
buyer. Plaintiff testified: “[T]he pain
was just getting increasingly worse. It
was harder to walk. Crawling was not an
option. The more time on the leg, the
more pain and the swelling.”
On
5 June 2002, plaintiff returned to Dr. Hill with continued knee pain and was referred to Dr. Scott
Hannum, an orthopedist. After seeing
plaintiff on 17 June 2002, Dr. Hannum ordered an MRI. The MRI suggested that plaintiff had a torn medial meniscus. On 10 July 2002, Dr. Hannum wrote plaintiff
out of work, and a month later, on 13 August 2002, plaintiff underwent
recommended knee surgery. Following the
surgery, defendants accepted the compensability of the injury in a Form 60, but
specified that disability did not begin until the date of the surgery.
Plaintiff
continued to have follow-up visits with Dr. Hannum, and on 2 December 2002, Dr.
Hannum concluded that plaintiff had reached maximum medical improvement. He assigned a 7% permanent partial
disability rating to plaintiff’s right knee and released plaintiff to work
without restrictions. In his
deposition, Dr. Hannum stated that plaintiff could have returned to his
previous occupation as a timber buyer had there been a position available, but
acknowledged that such work would have given plaintiff a “hard time” and that
plaintiff would need to be especially cautious with respect to his knee. According to Dr. Hannum, even after
recovery, plaintiff’s knee injury placed him at risk of developing
post-traumatic arthritis and of requiring further knee surgery in the future.
Plaintiff
obtained opinions from two additional orthopedists — Dr. Gilbert Whitmer and
Dr. Kevin Speer — regarding his disability rating. Both Dr. Whitmer and Dr. Speer assigned a 12% permanent partial
disability rating to plaintiff’s right knee.
They recommended that plaintiff’s activities be restricted, including no
lifting or carrying over 30 pounds and no excessive squatting, kneeling,
crawling, and stair or ladder climbing.
Dr. Hannum ultimately agreed that the disability ratings and activity
restrictions of the other two orthopedists were “reasonable.”
Plaintiff
remained out of work from 1 June 2002 through 6 February 2003. On 7 February 2003, plaintiff obtained
employment in a different line of work and at lower wages than he had
previously earned as a timber buyer.
When
the parties were unable to reach an agreement regarding the extent of the
benefits to which plaintiff was entitled, plaintiff requested a hearing before
the Industrial Commission. Deputy Commissioner J. Brad Donovan entered an opinion
and award on 6 June 2005 that awarded plaintiff temporary total disability
compensation for the period 17 June 2002 through 12 January 2003 and permanent
partial disability compensation for an additional 24 weeks.
Plaintiff
appealed to the Full Commission, which modified the deputy commissioner’s
decision in an opinion and award filed on 16 June 2006. The Commission determined that plaintiff was
entitled to: (1) temporary total disability beginning on 1 June 2002 and
continuing through 7 February 2003; (2) temporary partial disability beginning
on 7 February 2003 and continuing for the remainder of 300 weeks from the date
of injury; and (3) compensation for “medical expenses incurred or to be
incurred as a result of the compensable injury as may be required to provide
relief, effect a cure, or lessen the period of disability,” including
compensation to address any post-traumatic arthritis that plaintiff might
develop or any future knee surgery that he might require. Defendants timely appealed to this Court.
Our
review of a decision of the Industrial Commission “is limited to determining
whether there is any competent evidence to support the findings of fact, and
whether the findings of fact justify the conclusions of law.” Cross v. Blue Cross/Blue Shield, 104
N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). “The findings of the Commission are conclusive on appeal when
such competent evidence exists, even if there is plenary evidence for contrary
findings.” Hardin v. Motor Panels,
Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371, disc. review denied,
351 N.C. 473, 543 S.E.2d 488 (2000).
This Court reviews the Commission’s conclusions of law de novo. Deseth v. LensCrafters, Inc., 160
N.C. App. 180, 184, 585 S.E.2d 264, 267 (2003).
Defendants
do not dispute the award of benefits for the period 17 June 2002 through 12
January 2003. Defendants contend,
however, that the Commission erred in awarding (1) temporary total disability
benefits for the periods 1 June 2002 through 16 June 2002 and 13 January 2003
through 7 February 2003; and (2) temporary partial disability benefits
beginning 7 February 2003.[Note 1]
“The
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)
(2005). In order to support a
conclusion of compensable disability, 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 after 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).
There are four methods by which a plaintiff may prove disability:
(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.
Russell, 108 N.C. App. at 765,
425 S.E.2d at 457 (internal citations omitted).
With
respect to the period of 1 June 2002 through 16 June 2002, defendants first
contend that there was no competent evidence of plaintiff’s disability. Defendants do not, however, dispute that
plaintiff was totally disabled due to his compensable accident as of 17 June
2002, the date he was first examined by Dr. Hannum. Following the MRI, “the results of which suggested a torn medial
meniscus,” Dr. Hannum wrote plaintiff
out of work due to his knee condition.
The evidence from Dr. Hannum meets the requirements of the first method
of proof set forth in Russell.
As for the two weeks before plaintiff’s visit with Dr. Hannum, defendants contend that since plaintiff had not yet been written out of work or assigned any work restrictions, he has not proven that he was disabled. The Commission could, however, reasonably draw the inference that plaintiff’s condition on 1 June 2002 was the same as his condition a mere two weeks later on 17 June 2002 — the date by which defendants agree plaintiff had become totally disabled.
On
1 June 2002, plaintiff was suffering from the torn medial meniscus resulting
from his fall on 1 May 2002, and he testified to his steadily progressing pain.
That condition had simply not yet been diagnosed. By 31 May 2002 — several weeks after the
accident — plaintiff’s condition had gotten “increasingly worse” such that
“[i]t was harder to walk” and “[t]he more time on the leg, the more pain and
the swelling.” See Perkins v.
Broughton Hosp., 71 N.C. App. 275, 279, 321 S.E.2d 495, 497 (1984) (“The
ordinary person knows, without having to consult a medical expert, when it is
necessary to lie down and rest because his or her own body is tired, exhausted,
or in pain, and the law has no inhibition against testimony to that
effect. The credibility and weight of
plaintiff’s testimony was for the Commission to decide, not us.”).
In
short, the Commission had before it medical evidence that established, under
the first prong of Russell, that plaintiff was totally disabled as of 17
June 2002, as well as plaintiff’s testimony permitting the inference that
plaintiff’s condition as of 1 June 2002 was physically the same as on 17 June
2002. This combination of evidence is
sufficient to support the Commission’s finding of total temporary disability as
of 1 June 2002.
Defendants,
however, alternatively argue that because plaintiff was laid off on 31 May
2002, “the evidence of record shows that [p]laintiff’s loss of wage earning
capacity . . . was not the result of his injury by accident but instead was due
to an economic downturn.” Defendants
have focused on the wrong issue. While
the immediate cause of the loss of plaintiff’s wages as of 1 June 2002 may have
been the lay-off, that fact does not preclude a finding of disability. As Peoples v. Cone Mills Corp., 316
N.C. 426, 437, 342 S.E.2d 798, 805 (1986) explained, “an injured employee’s
earning capacity” is determined “by the employee’s own ability to compete in
the labor market.” Thus, the fact that
plaintiff was laid off does not preclude a finding of total disability if,
because of plaintiff’s injury, he was incapable of obtaining a job in the
competitive labor market.
A
plaintiff meets the burden of proving that incapacity by offering evidence
consistent with one of the methods of proof set forth in Russell. Because plaintiff presented medical evidence
showing an impairment of his earning capacity under the first prong of Russell,
the burden shifted to defendants to show that there were suitable jobs that
plaintiff was capable of obtaining during the first two weeks in June
2002. Burwell v. Winn-Dixie Raleigh,
Inc., 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994) (“If the claimant
presents substantial evidence that he is incapable of earning wages, the
employer has the burden of producing evidence to rebut the claimant’s
evidence. This requires the employer to
‘come forward with 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.’“ (quoting Kennedy v. Duke Univ. Med.
Ctr., 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990))). As defendants have made no attempt to
demonstrate that they met their burden, we uphold the Commission’s award of
temporary total disability compensation for the period of 1 June 2002 to 16
June 2002.
With
respect to the period of 13 January 2003 to 7 February 2003, defendants assert
that plaintiff failed to prove total disability because Dr. Hannum released
plaintiff to return to work without restrictions in December 2002. In response, plaintiff contends that he was
entitled to a presumption of ongoing disability despite having received a
doctor’s release to work.
A
presumption of disability only applies, however, when (1) there has been an
executed Form 21 or Form 26, or (2) there has been a prior disability award
from the Industrial Commission. Clark
v. Wal-Mart, 360 N.C. 41, 44, 619 S.E.2d 491, 493 (2005). Neither of these conditions is satisfied in
this case. A Form 60 does not give rise
to a presumption of continuing disability.
Id. at 44-45, 619 S.E.2d at 493-94. As such, plaintiff was not relieved of his burden of proving
disability for the period of 13 January 2003 to 7 February 2003 under one of
the Russell methods.
Plaintiff
has not met the requirements of the first method of proof under Russell
since he presented no medical evidence that he was incapable of work in any
employment during the period of 13 January 2003 to 7 February 2003. In fact, Dr. Hannum released plaintiff to
return to work in December 2002. Thus,
the Commission’s finding of total disability for the period of 13 January 2003
to 7 February 2003 cannot be premised upon the first Russell method.
The
absence of medical proof of total disability, however, “does not preclude a
finding of disability under one of the other three [Russell]
tests.” White v. Weyerhaeuser Co.,
167 N.C. App. 658, 672, 606 S.E.2d 389, 399 (2005). Where, as here, the findings show that “plaintiff, although
limited in the work he can perform, is capable of performing some work,” and
there is evidence that plaintiff may have satisfied Russell methods two
or three, the Commission must make findings addressing those two methods of
proof. Workman v. Rutherford Elec.
Membership Corp., 170 N.C. App. 481, 490, 613 S.E.2d 243, 250 (2005). We must, therefore, remand to the Commission
to make findings regarding plaintiff’s disability, under Russell methods
two and three, for the period of 13 January 2003 to 7 February 2003. See id. at 491, 613 S.E.2d at 250
(“We remand to the Commission to make findings of fact, based on competent
evidence, to determine whether plaintiff is totally disabled.”).
Finally,
defendants assert that plaintiff failed to establish the existence of ongoing
disability following his return to work on 7 February 2003 sufficient to
entitle him to an award of temporary partial disability benefits. When, however, a worker presents evidence
that satisfies the fourth prong of Russell — “that he has obtained other
employment at a wage less than that earned prior to the injury,” 108 N.C. App.
at 765, 425 S.E.2d at 457 — “[s]uch evidence, while not dispositive of
disability, shifts the burden to the employer to establish that the employee
could have obtained higher earnings.” Larramore
v. Richardson Sports, Ltd. Partners, 141 N.C. App. 250, 259-60, 540 S.E.2d
768, 773 (2000), aff’d per curiam, 353 N.C. 520, 546 S.E.2d 87 (2001).
Here,
plaintiff presented evidence that he obtained other employment on 7 February
2003 at lower wages than he had previously earned, as well as evidence showing
agreement among all the doctors that he had permanent restrictions on the type
of work he could perform. Consequently,
the burden shifted to defendants to show that plaintiff could obtain a
higher-paying job.
Although
defendants challenge the sincerity of plaintiff’s job search and make various
arguments regarding plaintiff’s educational and vocational background, they presented
no evidence to the Commission to show that plaintiff could, in fact, have
obtained employment at higher earnings.
See Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 131,
532 S.E.2d 583, 588 (2000) (“Competent evidence indicates that plaintiff at bar
met his burden under [Russell method (4)] . . . by showing his earnings
through his employment with Direct Transport, Inc. These earnings, likewise, were competent evidence of plaintiff’s
earning capacity. Defendant presented
no evidence that plaintiff could obtain employment earning more than this
amount.”).
Accordingly,
the Commission could properly determine that plaintiff’s reduced wages were a
manifestation of his disability and, further, that this diminished earning
capacity entitled him to temporary partial disability benefits. See Whitfield v. Lab. Corp. of Am.,
158 N.C. App. 341, 354, 581 S.E.2d 778, 787 (2003) (“Commission’s finding that
plaintiff had demonstrated a reduced wage earning capacity under the fourth
option . . . was a proper basis for the Commission to award plaintiff partial
disability benefits.”). The award of
temporary partial disability is, therefore, also upheld.
Affirmed
in part; remanded in part.
Judges
HUNTER and ELMORE concur.
1. Defendants report in their brief that they have paid plaintiff temporary total disability benefits from 17 June 2002 through 12 January 2003.