Gerald Allen BROWN, Plaintiff/Appellant,
v.
S & N COMMUNICATIONS, INC., Employer,
Home Insurance Company, Carrier, Appellees.
No. COA95-1283.
Court of Appeals of North Carolina.
November 5, 1996.*202 Zeyland G. McKinney, Jr., Robbinsville, for plaintiff-appellant.
Wishart, Norris, Henninger & Pittman, P.A. by W. Timothy Moreau, Charlotte, for defendants-appellees.
EAGLES, Judge.
Plaintiff contends that the Industrial Commission erred by failing to apply the continuing presumption of disability in favor of the plaintiff. We agree.
The Worker's Compensation Act compensates an employee for work related injuries which prevent him from making the equivalent amount of wages he made before the injury. Watson v. Winston-Salem Transit Authority, 92 N.C.App. 473, 475, 374 S.E.2d 483, 485 (1988). In order to receive disability compensation under the Act, the mere fact of an on the job injury is not sufficient. The injury must have impaired the worker's earning capacity. Id.; Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967).
N.C.G.S. 97-2(9) defines 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." In order to find a worker disabled under the Act, 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). Initially, the claimant must prove both the extent and the degree of his disability. Watson v. Winston-Salem Transit Authority, 92 N.C.App. 473, 475, 374 S.E.2d 483, 485 (1988). However, once the disability is proven, "there is a presumption that it continues until the employee returns to work at wages equal to those he was receiving at the time his injury occurred." Watson, 92 N.C.App. at 476, 374 S.E.2d at 485 (quoting Watkins v. Central Motor Lines, 279 N.C. 132, 137, 181 S.E.2d 588, 592 (1971)). The approval of a Form 21 by the Commission relieves the employee of his initial burden of proving a disability. In fact, once the Commission approves a Form 21 agreement between the parties, the employee receives the benefit of the presumption that he is totally disabled. Franklin v. Broyhill Furniture, 123 N.C.App. 200, 205, 472 S.E.2d 382, 386 (1996).
The parties here executed a Form 21 agreement on 25 June 1991 and the Commission approved that agreement on 30 July 1991. Accordingly, plaintiff met his initial burden of proving a disability at that time. That presumption of disability continues until the defendant offers evidence to rebut the presumption. At that point, the burden shifts to the employer to show that the worker is employable. Radica v. Carolina Mills, 113 N.C.App. 440, 447, 439 S.E.2d 185, 190 (1994).
An employer may rebut the continuing presumption of total disability either by showing the employee's capacity to earn the same wages as before the injury or by showing the employee's capacity to earn lesser wages than before the injury. Franklin v. Broyhill Furniture, 123 N.C.App. 200, 208, 472 S.E.2d 382, 388 (1996) (Walker, J., concurring). To rebut the presumption of continuing *203 disability, the employer must produce evidence that:
1. suitable jobs are available for the employee;
2. that the employee is capable of getting said job taking into account the employee's physical and vocational limitations;
3. and that the job would enable the employee to earn some wages.
Franklin v. Broyhill Furniture, 123 N.C.App. 200, 208, 472 S.E.2d 382, 388 (1996)(Walker, J., concurring). At any time, the employer may rebut the presumption of disability by showing that the employee has unjustifiably refused suitable employment. N.C.G.S. 97-32 (1991); Franklin v. Broyhill Furniture, 123 N.C.App. 200, 208, 472 S.E.2d 382, 388 (1996)(Walker, J., concurring).
A finding of maximum medical improvement is not the equivalent of a finding that the employee is able to earn the same wage earned prior to injury and does not satisfy the defendant's burden. "The maximum medical improvement finding is solely the prerequisite to determination of the amount of any permanent disability for purposes of G.S. 97-31." Watson v. Winston-Salem Transit Authority, 92 N.C.App. 473, 476, 374 S.E.2d 483, 485 (1988); see also Radica v. Carolina Mills, 113 N.C.App. 440, 439 S.E.2d 185, (1994).
The Commission erred here by mistaking a finding of maximum medical improvement for evidence sufficient to rebut the continuing presumption of disability. The Commission erroneously placed the burden of proving the disability on the plaintiff following a finding that the plaintiff had reached maximum medical improvement on 4 March 1992. In its findings of fact, the Commission found that the "[P]laintiff has neither sought employment, nor engaged in any employment, since reaching maximum medical improvement on 4 March 1992" and that the evidence was insufficient to determine that the "plaintiff is physically or mentally incapable of working in any employment, that he unsuccessfully sought work within his capability for work, that it would be futile to look for work due to preexisting conditions, or that he has obtained employment at a wage less than he earned prior to injury." The Commission made no findings as to the sufficiency of the defendant's evidence. This formula for reviewing the plaintiff's claim is incorrect. After a finding of maximum medical improvement, the burden remains with the employer to produce sufficient evidence to rebut the continuing presumption of disability; the burden does not shift to the employee.
If the employer offers sufficient evidence to rebut the continuing presumption of disability, the process is not concluded. The burden then switches back to the employee to offer evidence in support of a continuing disability or evidence to prove a permanent partial disability under G.S. 97-30. Franklin v. Broyhill Furniture, 123 N.C.App. 200, 208, 472 S.E.2d 382, 388 (1996) (Walker, J., concurring). The employee can prove a continuing total disability by showing either that no jobs are available, no suitable jobs are available, or that he has unsuccessfully sought employment with the employer. Id. If the employee meets this burden, he is entitled to continuing total disability benefits.
If the employee fails to meet this burden, he continues to be disabled but the disability changes from a total disability to a partial disability under N.C.G.S. 97-30. Id.; Kennedy v. Duke Univ. Med. Center, 101 N.C.App. 24, 398 S.E.2d 677 (1990). When an employee's power to earn is diminished but not obliterated, he is entitled to benefits under N.C.G.S. 97-30 for a permanent partial disability. Gupton v. Builders Transport, 320 N.C. 38, 42, 357 S.E.2d 674, 678 (1987). An injured employee cannot be simultaneously totally and partially disabled. Carothers v. Ti-Caro, 83 N.C.App. 301, 306, 350 S.E.2d 95, 98 (1986). The remedies for a total disability under G.S. 97-29 or G.S. 97-31 and a partial disability under G.S. 97-30 are mutually exclusive. Id. However, when an employee cannot be fully compensated under G.S. 97-31 or G.S. 97-29 for total disability, he may still be entitled to compensation for a permanent partial disability under G.S. 97-30. Kendrick v. City of Greensboro, 80 N.C.App. 183, 189, 341 S.E.2d 122, *204 125 (1986). The employee may select the remedy which offers the more generous benefits, "less the amount he or she has already received." Gupton, 320 N.C. at 43, 357 S.E.2d at 678.
The Commission's error here foreclosed plaintiff's opportunity to select the more generous remedy. Shifting the burden of proving a temporary total disability to the plaintiff-employee after a finding of maximum medical improvement, without more, deprives the plaintiff of an opportunity to offer evidence to establish a permanent partial disability and receive additional benefits under G.S. 97-30.
Accordingly, we vacate the award of the Industrial Commission and remand for further proceedings to determine the extent of the plaintiff's disability on 4 March 1992. In that proceeding, defendants may offer evidence to rebut the presumption of disability arising from the approved Form 21. Plaintiff may then offer evidence to establish either a continuing total disability or a permanent partial disability under G.S. 97-30.
Our holding here makes it unnecessary to address plaintiff's remaining assignment of error. For the foregoing reasons, we vacate and remand.
Vacated and remanded.
WALKER and McGEE, JJ., concur.