Eddie GAMBLE
v.
BORDEN, INC.
No. 7910IC628.
Court of Appeals of North Carolina.
March 4, 1980.*281 Bryant, Bryant, Drew & Crill by Lee A. Patterson, II, Durham, for plaintiff-appellant.
Young, Moore, Henderson & Alvis by B. T. Henderson, II, Raleigh, for defendant-appellee.
ROBERT M. MARTIN, Judge.
The critical fact in issue is the duration of plaintiff's total disability. "The question of whether there has been a total and permanent disability resulting from a loss of mental capacity caused by or resulting from an injury to the brain is one of fact." Priddy v. Cab Co., 9 N.C.App. 291, 297, 176 S.E.2d 26, 30 (1970). Duration is a critical finding necessary to support a compensation award under G.S. 97-29 and 30 which provide "[c]ompensation for disability, dependent as to amount upon whether the injury produces a permanent total, a permanent partial, a total temporary or a partial temporary incapacity." Watts v. Brewer, 243 N.C. 422, 423, 90 S.E.2d 764, 766 (1956). 2 A. Larson, The Law of Workmen's Compensation § 57.10 (1976). Hence under the traditional four-way classification of disabilities, a total disability under G.S. 97-29 must be either permanent or temporary.
The terms permanent and temporary are not defined in the North Carolina Workers' Compensation Act. However, the Industrial Commission in its Twenty-Fourth Biennial Report for 1974-75, 1975-76 provides the following definitions: "Permanent Total Case: A permanent total case is one in which an employee sustains an injury which results in his inability to function in any work-related capacity at any time in the future." "Temporary Total Case: A temporary total case is one in which the employee is temporarily unable to perform any work duties." Larson defines permanent as "lasting the rest of claimant's life. A condition that, according to available medical opinion, will not improve during the claimant's lifetime is deemed a permanent one. If its duration is merely uncertain, it cannot be found to be permanent." A. Larson, supra, n. 7.
"[S]pecific findings by the Commission with respect to the crucial facts, *282 upon which the question of plaintiff's right to compensation depends, are required." (Citations omitted) Morgan v. Furniture Industries, Inc., 2 N.C.App. 126, 128, 162 S.E.2d 619, 620 (1968). "If the findings of fact of the Commission are insufficient to enable the court to determine the rights of the parties upon matters in controversy, the proceeding must be remanded for the Commission to make proper findings." (Citation omitted) Perry v. Furniture Co., 296 N.C. 88, 92, 249 S.E.2d 397, 400 (1978). In its findings of fact, the Commission found only that "at the time of the hearing on April 4, 1978 he was totally disabled . ." This finding is insufficient on the crucial fact of duration upon which plaintiff's right to compensation depends and is insufficient to support an award of compensation. However, although the Commission did not expressly find that plaintiff's disability is temporary, that finding is implicit in the Commission's opinion and award taken as a whole. The Commission in deleting "permanent" from the Deputy Commissioner's finding of fact and conclusion of law, in referring in its opinion to plaintiff's case as one "wherein no one knows what the future holds" and in concluding that defendants owe plaintiff compensation "until plaintiff is tendered or obtains work suitable to his capacity or has a change in condition" has, in effect, found that the duration of plaintiff's disability is temporary. We, therefore, elect to treat the Commission's finding that plaintiff was totally disabled on the day of the hearing as a finding of temporary total disability.
Having made this determination, we must now apply the pertinent legal principles to the evidence and findings of the Commission. "[J]urisdiction of appellate courts on appeal from an award of the Industrial Commission is limited to the questions (1) whether there was competent evidence before the Commission to support its findings and (2) whether such findings support its legal conclusions." (Citations omitted) Perry v. Furniture Co., 296 N.C. 88, 92, 249 S.E.2d 397, 400 (1978). "The courts may set aside findings of fact only upon the ground they lack evidentiary support. (Citations omitted). The court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding." (Citations omitted) Inscoe v. Industries, Inc., 292 N.C. 210, 215, 232 S.E.2d 449, 452 (1977).
Examining the evidence before the Commission on the issue of the duration of plaintiff's disability, we hold that the evidence does not support a finding that plaintiff's disability is temporary. Dr. Stevenson testified
In response to the question of the probable duration of his condition at the time of my last examination of him, Mr. Gamble's condition to date has been almost downhill. I would conclude that his disability is probably permanent. Based upon my examination and conversations and treatment of Mr. Gamble, it is my opinion that the probable duration of Mr. Gamble's disability to work is permanent.
Dr. Lockhart testified
It is my opinion from my examination of Mr. Gamble that he is not able to work and that he is permanently disabled for work. My opinion as to the probable duration of the disability to work is that he is permanently disabled from work.
There is no conflicting evidence in the record on the duration of plaintiff's disability nor is there evidence that plaintiff's condition will improve. In no reasonable view of the evidence before the Commission is the duration of plaintiff's disability any less than permanent. Therefore, the Commission erred in failing to find that plaintiff is permanently and totally disabled.
The case is remanded to the Industrial Commission for entry of an award in accordance with this opinion.
Reversed and remanded.
ERWIN and WELLS, JJ., concur.