An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1358
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
KERRY RAY HARRISON,
Employee-Plaintiff,
v. From the North Carolina
Industrial Commission
I.C. No. 167921
GEMMA POWER SYSTEMS, LLC,
Employer,
and
TRAVELERS INSURANCE COMPANY,
Carrier,
Defendants.
Appeal by plaintiff from opinion and award entered 16
September 2013 by the North Carolina Industrial Commission.
Heard in the Court of Appeals 10 April 2014.
Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson and
Fred D. Poisson, Jr., for plaintiff-appellant.
Jessica E. Lyles for defendants-appellees.
HUNTER, JR., Robert N., Judge.
Kerry Ray Harrison (“Plaintiff”) appeals from an opinion
and award of the North Carolina Industrial Commission denying
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his claim for indemnity benefits and concluding that his claim
for additional medical benefits is time-barred by N.C. Gen.
Stat. § 97-25.1 (2013). Plaintiff contends that the Industrial
Commission’s findings of fact are inadequate and that the record
evidence entitles him to disability (See N.C. Gen. Stat. §§ 97-
29, -30 (2013)) and/or permanent impairment (See N.C. Gen. Stat.
§ 97-31 (2013)) indemnity benefits. Plaintiff further contends
that his right to future indemnity payments undermines the
Industrial Commission’s statute of limitations analysis. For
the following reasons, we hold that Plaintiff’s right to
additional medical compensation is time-barred, but agree that
the Industrial Commission’s findings and conclusions concerning
Plaintiff’s right to disability and permanent impairment
benefits are inadequate.
I. Factual & Procedural History
Plaintiff began working for Gemma Power Systems, LLC
(“Defendant”)1 in 2000 as a pipefitter. In this role, Plaintiff
was required to perform manual labor that often required him to
lift between 40 and 100 pounds, as well as perform overhead
work.
1
Defendant’s actions described herein also include the actions
of Defendant’s insurance carrier and co-defendant, Travelers
Insurance Company.
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On 2 March 2001, Plaintiff suffered a compensable injury
while working for Defendant when he was struck on the head by a
falling pipe fixture. Plaintiff was wearing a hard hat at the
time. The impact knocked Plaintiff to the ground, leaving him
dazed and with a headache.
A few days after the accident, Plaintiff told Defendant
that he was having severe neck pain and requested medical
attention. Defendant sent Plaintiff to Sandhills Medical Center
for evaluation and treatment. A CT scan showed no evidence of
fracture and Plaintiff was referred to a chiropractor for
continuing treatment. Plaintiff received chiropractic treatment
from 5 March 2001 until 24 May 2001.
While being treated by the chiropractor, Plaintiff returned
to work and performed light duty tasks until he was laid off by
Defendant on 22 April 2001. After being laid off, Defendant
referred Plaintiff to Dr. Dixon Gerber (“Dr. Gerber”), an
orthopedic surgeon. Dr. Gerber evaluated Plaintiff on 27 June
2001 and opined in his post-evaluation report as follows:
I feel this gentleman sustained an acute
cervical injury back on 03-02-01. At the
presenttime [sic] I think he is at maximum
medical improvement and has no permanent
partial disability. I think this patient
could return to full unrestricted duties
commencing 07-02-01. At this time, I
foresee no further medical treatment
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necessary.
After seeing Dr. Gerber, Plaintiff filed a Form 18 on 6 July
2001 with the Industrial Commission documenting and noticing the
2 March 2001 injury.
Subsequently, Defendant rehired Plaintiff as a pipefitter.
However, after several instances of Plaintiff missing work and
arriving late for work, Defendant terminated Plaintiff. From
July 2001 until February 2003, Plaintiff worked for a number of
employers in the construction industry as a pipefitter.
Thereafter, Plaintiff worked as a laborer, security guard,
theater worker, electrician’s helper, and as a loader. In May
2009, Plaintiff stopped working altogether to attend community
college, but later obtained a part-time position at the library
as a computer lab assistant. Plaintiff testified that during
periods of unemployment, he collected unemployment benefits.
Notwithstanding Dr. Gerber’s assessment in July 2001,
Plaintiff continued to report problems with his neck in the
years that followed. On 27 June 2002, Plaintiff sought medical
treatment on his own and had an MRI performed at Southeastern
Regional Medical Center that revealed a “mild broad base disc
bulge at C6–7.” Plaintiff was referred to a neurosurgeon. At
Defendant’s request, Plaintiff had an independent medical
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evaluation performed by Dr. Robert Lacin (“Dr. Lacin”) at
Goldsboro Neurological Surgery. In his medical report dated 2
October 2002, Dr. Lacin opined as follows:
In regards to the origin of these
complaints, with a temporal relationship to
the accident, in absence of any other
problems with his neck, I certainly have no
doubt that the patient’s symptoms are
related to this incident of March 2, 2001.
However, whether or not they are structural,
soft tissue related and/or
psychogenic/somatoform, at the present time
I cannot tell with certainty.
Dr. Lacin recommended that Plaintiff see an interventional pain
management specialist to perform diagnostic joint blocks, and,
if necessary, a cervical discogram.
Following a motion by Plaintiff to authorize additional
neck treatment, the Industrial Commission filed an order on 7
July 2003 compelling Defendant to “provide for plaintiff to
undergo the diagnostic testing recommended by Dr. Lacin with a
specialist of plaintiff’s choice.” Subsequently, from December
2003 to November 2006, Plaintiff was seen by Dr. T. Hemanth Rao
(“Dr. Rao”) at Neurology Consultants of the Carolinas, and later
by Dr. Paul McDonald (“Dr. McDonald”). Plaintiff’s continued
neck pain and headaches were documented at these visits and Dr.
McDonald referred Plaintiff for a surgical opinion.
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On 11 December 2008, Plaintiff filed a Form 33 with the
Industrial Commission wherein Plaintiff alleged that Defendant
refused to authorize the medical treatment recommended by Dr.
McDonald. On 22 December 2008, the Industrial Commission
ordered another evaluation by Dr. Rao. However, as a result of
a mix-up at the doctor’s office, Plaintiff was seen again by Dr.
McDonald. Dr. McDonald gave Plaintiff work restrictions of no
lifting greater than twenty pounds and no reaching overhead, and
again referred Plaintiff for a surgical opinion.
On 27 April 2009, Dr. Alfred Rhyne (“Dr. Rhyne”), board
certified in orthopedics, performed an independent medical
evaluation of Plaintiff. Dr. Rhyne opined that Plaintiff had
“chronic C7 radioculpathy and a history of disk protrusion at
C6–7” and recommended that Plaintiff get an MRI of his spine.
Defendant, however, refused to authorize the MRI. Nevertheless,
Plaintiff sought out and subsequently received an MRI at the
Veterans Affairs Medical Center in Fayetteville, which revealed
“[m]ultilevel cervical spondylosis . . . in the lower cervical
spine” that was “most prominent at C5 and C6.” Thereafter,
Plaintiff requested that Defendant pay for Dr. Rhyne to read the
MRI and render an opinion for further treatment. Defendant
refused this request.
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On 25 January 2012, Plaintiff filed another Form 33 request
with the Industrial Commission alleging that Defendant “failed
to authorize plaintiff’s request for further treatment with Dr.
Rhyne” and raised the issue of Plaintiff’s right to indemnity
benefits as a result of the 2 March 2001 injury. On 6 February
2012, Defendant filed a Form 33R contending that Plaintiff’s
claim was “medical only” and barred by the statute of
limitations. Record evidence shows that Plaintiff has never
received indemnity benefits from Defendant, but did receive
payments for authorized medical expenses until 18 May 2009, the
date of Defendant’s last recorded payment.
On 7 February 2013, the Deputy Commissioner filed an
opinion and award concluding that Plaintiff’s claim for
additional medical compensation was barred by the statute of
limitations and denied Plaintiff’s request for indemnity
benefits. Plaintiff appealed to the Full Commission. On 16
September 2013, the Full Commission affirmed the opinion and
award, concluding that Plaintiff’s claim for additional medical
compensation was time-barred pursuant to N.C. Gen. Stat. § 97-
25.1 and that Plaintiff failed to establish the existence of a
disability pursuant to Hilliard v. Apex Cabinet Co., 305 N.C.
593, 290 S.E.2d 682 (1982), and Russell v. Lowes Prod.
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Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993).
Plaintiff filed timely notice of appeal to this Court on 25
September 2013.
II. Jurisdiction & Standard of Review
Plaintiff’s appeal from the opinion and award of the Full
Commission lies of right to this Court pursuant to N.C. Gen.
Stat. § 7A-29(a) (2013). Accord N.C. Gen. Stat. § 97-86 (2013).
Our review of an opinion and award of the Industrial
Commission “is limited to consideration of whether competent
evidence supports the Commission’s findings of fact and whether
the findings support the Commission’s conclusions of law. This
‘court’s duty goes no further than to determine whether the
record contains any evidence tending to support the finding.’”
Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660,
669 S.E.2d 582, 584 (2008) (citation omitted) (quoting Anderson
v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274
(1965)). “The Commission is the sole judge of the credibility
of the witnesses and the weight to be given their testimony.”
Anderson, 265 N.C. at 433–34, 144 S.E.2d at 274.
However, “[c]onclusions of law by the Industrial Commission
are reviewable de novo by this Court.” Bond v. Foster Masonry,
Inc., 139 N.C. App. 123, 127, 532 S.E.2d 583, 585 (2000).
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“Under a de novo review, the court considers the matter anew and
freely substitutes its own judgment for that of the lower
tribunal.” Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C.
334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks and
citation omitted).
III. Analysis
Plaintiff’s appeal raises three questions for our review:
(1) whether Plaintiff’s claim for additional medical
compensation from Defendant is time-barred by N.C. Gen. Stat. §
97-25.1; (2) whether the Full Commission erred in denying
temporary total and temporary partial disability benefits to
Plaintiff; and (3) whether the trial court erred in denying
permanent partial impairment benefits to Plaintiff. We address
each in turn.
A. Medical Compensation Benefits
Plaintiff contends that the Full Commission erred in
denying him medical compensation benefits for medical expenses
incurred after 18 May 2009. We disagree.
In its opinion and award, the Full Commission entered the
following pertinent findings of fact:
26. Defendant’s last payment of medical
compensation in this case was a payment of
medical benefits made on 18 May 2009.
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27. Subsequent to that 18 May 2009 payment,
the next document plaintiff filed with the
Commission requesting the provision of
medical treatment was a Form 33 submitted on
25 January 2012, more than two years
following the last payment of medical
benefits.
Applicable here, N.C. Gen. Stat. § 97-25.1 provides, in part:
The right to medical compensation shall
terminate two years after the employer’s
last payment of medical or indemnity
compensation unless, prior to the expiration
of this period, either: (i) the employee
files with the Commission an application for
additional medical compensation which is
thereafter approved by the Commission, or
(ii) the Commission on its own motion orders
additional medical compensation.
See also Busque v. Mid-Am. Apartment Communities, 209 N.C. App.
696, 707, 707 S.E.2d 692, 700 (2011) (applying the two-year
statute of limitations in a straight-forward manner and
concluding that the plaintiff’s right to medical compensation
had terminated). Accordingly, based on its findings of fact,
its reading of N.C. Gen. Stat. § 97-25.1, and this Court’s
decision in Busque, the Full Commission concluded that Plaintiff
was not entitled to medical compensation benefits after 18 May
2009.
On appeal, Plaintiff does not challenge the evidentiary
support for Finding of Fact 26 or 27. Rather, Plaintiff argues
that “the last payment of compensation in the claim has not yet
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taken place” because “Plaintiff is still owed payment for
temporary total disability and/or permanent partial impairment.”
Stated differently, Plaintiff argues that the two-year statute
of limitations period found in N.C. Gen. Stat. § 97-25.1 has not
yet begun and will not begin until Plaintiff receives a payment
from Defendant for indemnity benefits. Plaintiff’s argument on
this point is misguided for several reasons. First, Plaintiff’s
argument ignores the plain language of the statute. “The right
to medical compensation shall terminate two years after the
employer’s last payment of medical or indemnity
compensation . . . .” N.C. Gen. Stat. § 97-25.1 (emphasis
added). In context, the word “last” does not refer to a
hypothetical future payment that Plaintiff may be entitled to
receive after presenting a claim to the Industrial Commission.
On its face, the “last” payment refers to the most recent
payment of medical or indemnity benefits that has actually been
paid. Second, Plaintiff’s argument assumes the certainty of a
future indemnity payment before the right to such payment has
been decided by the Industrial Commission. Third, accepting
Plaintiff’s interpretation of the statute would allow claimants
seeking additional medical compensation to obviate the statute
of limitations in any case by asserting a valid claim for
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indemnity benefits alongside a claim for additional medical
compensation. Such an expansive interpretation ignores the
clear intent of our legislature to limit claims for additional
medical compensation to a specified time period. Accordingly,
because the last payment of medical compensation made by
Defendant was more than two years prior to Plaintiff’s current
Form 33 filing, we hold that Plaintiff’s right to additional
medical compensation is time-barred pursuant to N.C. Gen. Stat.
§ 97-25.1.
B. Disability Benefits
The second issue raised by Plaintiff’s appeal is whether
the Full Commission erred in denying Plaintiff temporary total
and temporary partial disability benefits under N.C. Gen. Stat.
§ 97-29 and § 97-30.
In its opinion and award, the Full Commission entered the
following conclusion of law:
5. Regarding plaintiff’s entitlement to
temporary total or temporary partial
disability benefits, the burden of proving
compensable disability is with
plaintiff. . . . Plaintiff was released to
return to work at regular duty as of 2 July
2001. Plaintiff returned to work at regular
duty for multiple employers subsequent to
that date and also received unemployment
benefits when he was not working. Plaintiff
has failed to meet his burden of proving
disability . . . and therefore plaintiff is
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not entitled to temporary partial or
temporary total disability
compensation. . . . Plaintiff has failed to
meet his burden of proving the existence and
extent of disability that was caused by the
2 March 2001 injury.
Plaintiff contends that the Full Commission’s findings of fact
are inadequate to support this conclusion and requests a remand
for additional fact finding.
In order to recover indemnity benefits pursuant to N.C.
Gen. Stat. § 97-29 (total incapacity) or N.C. Gen. Stat. § 97-30
(partial incapacity), the burden of proof is on the claimant to
demonstrate “both the existence of his disability and its
degree.” Hilliard, 305 N.C. at 595, 290 S.E.2d at 683. “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)
(2013).
[I]n order to support a conclusion of
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.
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Hilliard, 305 N.C. at 595, 290 S.E.2d at 683. A claimant may
meet his burden of establishing the existence of a “disability”
in one of four ways:
(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).
Here, Plaintiff concedes that no medical evidence was
presented before the Industrial Commission tending to show that
he is “physically or mentally, as a consequence of the work
related injury, incapable of work in any employment.” Thus, the
first prong in Russell is inapplicable to the present appeal.
Nevertheless, Plaintiff contends that evidence was presented on
the second, third, and fourth prongs in Russell, which would
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require the Industrial Commission to make findings of fact with
respect to those issues. See Cardwell v. Jenkins Cleaners,
Inc., 365 N.C. 1, 2, 704 S.E.2d 898, 899 (2011) (“Although the
Commission need not find facts on every issue raised by the
evidence, it is required to make findings on crucial facts upon
which the right to compensation depends.” (quotation marks and
citations omitted)).
The Full Commission made the following findings of fact
with respect to Plaintiff’s employment history after the 2 March
2001 injury:
4. Plaintiff attempted to return to work
with defendant-employer doing light-duty
tasks, but was laid off on 22 April 2001.
. . .
7. Defendant-employer subsequently re-hired
plaintiff, at full-duty, for a short period
of time.
8. Shortly after he was re-hired, plaintiff
was terminated by defendant-employer.
Plaintiff called out from work on two days
and the next day called to say he was going
to be late and was then informed he was
terminated.
9. After being terminated by defendant-
employer, plaintiff returned to work for
other employers as a travelling construction
worker in the pipe fitting trade.
. . .
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12. Plaintiff testified that, because of
his ongoing neck pain, he was forced to stop
working as a pipe fitter in February 2003.
Subsequent to that date plaintiff worked in
various jobs, such as a security guard,
movie theatre worker, and electrician’s
helper until May of 2009. The wages
plaintiff earned subsequent to his
employment with defendant-employer were not
sufficiently established by the evidence.
. . .
20. Plaintiff began a full-time business
curriculum at Robeson Community College in
May 2009. Plaintiff graduated with an
Associate’s Degree May 2012. As of the date
of the hearing before the Deputy
Commissioner, plaintiff was a full-time
student pursuing a Bachelor’s degree in
Business. As of the date of the hearing
before the Deputy Commissioner, plaintiff
was also working part-time at the library as
a computer lab assistant.
With respect to the second and third prongs of Russell,
Plaintiff testified at the hearing before the Deputy
Commissioner that he only continued working as a pipefitter
between the 2 March 2001 injury and 2003 because he did not have
an education and could not earn the same wages doing something
outside of his expertise. Plaintiff testified that in order to
keep earning money during this timeframe, he worked through
pain. Plaintiff indicated that he was fired and/or left jobs
because he had to miss time due to his injury. Plaintiff also
testified that he experienced periods of unemployment and, at
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one point, sent out between 200 and 300 resumes without finding
employment. Plaintiff attributed his inability to find a job,
in part, to the fact that he lacked a bachelor’s degree. Record
evidence also showed that on 30 January 2009, Dr. McDonald gave
Plaintiff working restrictions of no lifting greater than twenty
pounds and no reaching overhead.
Notwithstanding this evidence presented at the hearing, the
Full Commission’s findings of fact do not address Plaintiff’s
inability to obtain employment after a reasonable effort (prong
two in Russell), or the futility of finding employment given
Plaintiff’s lack of education and injury related restrictions
(prong three in Russell). Defendant contends that the fact that
Plaintiff obtained employment during the timeframe between the 2
March 2001 injury and the 25 January 2012 Form 33 filing
forecloses any possibility of recovering under the second and
third prongs of Russell. Thus, in Defendant’s view, the Full
Commission was not required to address those two methods of
proof in its findings of fact. However, this Court’s recent
opinion in Beard v. WakeMed, ___ N.C. ___, 753 S.E.2d 708
(2014), does not support Defendant’s argument. In Beard, we
held that “the evidence and the Commission’s findings of fact
regarding the evidence support the conclusion that Plaintiff has
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proven disability under the second prong of Russell” even though
the plaintiff in that case obtained a part-time position that
turned into a full-time position which the plaintiff held until
“a week or two before her hearing before the Industrial
Commission.” Id. at ___, 753 S.E.2d at 712 (quotation marks
omitted). Thus, Beard stands for the proposition that a
claimant may obtain employment between the injury and the
hearing before the Industrial Commission without foreclosing his
or her ability to prove disability under the second or third
prongs in Russell.
Unlike a large number of workers’ compensation cases, here,
nearly eleven years passed between Plaintiff’s injury and his
claim for indemnity benefits. Given this context, it is not
unusual that Plaintiff was able to find employment after his
injury. While the Full Commission is free to weigh the
credibility of Plaintiff’s testimony and conclude that
Plaintiff’s burden under prongs two and three have not been met,
it cannot abdicate its responsibility to address evidence
presented by Plaintiff upon which the right to compensation
depends. See Britt v. Gator Wood, Inc., 185 N.C. App. 677, 684,
648 S.E.2d 917, 922 (2007) (“Where, as here, the findings show
that plaintiff, although limited in the work he can perform, is
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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.” (quotation marks and citation omitted)). Accordingly,
because Plaintiff produced some evidence at the hearing
implicating these two methods of proof, the Full Commission
erred in failing to make findings of fact concerning them. We
must, therefore, remand to the Full Commission to make such
findings. See Hilliard, 305 N.C. at 595, 290 S.E.2d at 684
(stating that “when the findings are insufficient to determine
the rights of the parties, the court may remand to the
Industrial Commission for additional findings”).
With respect to the fourth prong in Russell, namely, “the
production of evidence that [the plaintiff] has obtained other
employment at a wage less than that earned prior to the injury,”
Plaintiff contends that Finding of Fact 12 conclusively
establishes that “Plaintiff could no longer perform pipe-fitting
after 2003 because of his pain from his injury” and that
“Plaintiff was incapable of earning the same wages in his prior
employment of pipe-fitting as a result of this injury.”
Plaintiff’s argument is misplaced. Finding of Fact 12 states:
12. Plaintiff testified that, because of
his ongoing neck pain, he was forced to stop
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working as a pipe fitter in February 2003.
Subsequent to that date plaintiff worked in
various jobs, such as a security guard,
movie theatre worker, and electrician’s
helper until May of 2009. The wages
plaintiff earned subsequent to his
employment with defendant-employer were not
sufficiently established by the evidence.
Contrary to Plaintiff’s assertion, the first two sentences in
Finding of Fact 12 are recitations of the testimony presented at
the hearing, not ultimate facts that are binding on the Full
Commission. See Jones v. Modern Chevrolet, 194 N.C. App. 86,
93–94, 671 S.E.2d 333, 338 (2008) (“[R]ecitations of the
testimony of each witness do not constitute findings of fact by
the trial judge, because they do not reflect a conscious choice
between the conflicting versions of the incident in question
which emerged from all the evidence presented.” (alteration in
original) (quotation marks and citations omitted)).
Furthermore, the final sentence in Finding of Fact 12, that
“[t]he wages plaintiff earned subsequent to his employment with
defendant-employer were not sufficiently established by the
evidence,” shows that the Full Commission did not find
Plaintiff’s evidence concerning the fourth prong in Russell
sufficient. While Plaintiff points to his own testimony and his
responses to interrogatories to show that he met his burden
under prong four, the Full Commission was within its power to
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discredit that evidence. See Hassell v. Onslow Cnty. Bd. of
Educ., 362 N.C. 299, 306–07, 661 S.E.2d 709, 715 (2008) (stating
that “[t]he Commission may not wholly disregard competent
evidence; however, as the sole judge of witness credibility and
the weight to be given to witness testimony, the Commission may
believe all or a part or none of any witness’s testimony,” and
“[t]he Commission is not required to accept the testimony of a
witness, even if the testimony is uncontradicted,” nor must it
“offer reasons for its credibility determinations” (quotation
marks and internal citations omitted)). Accordingly, the Full
Commission did not err in concluding that Plaintiff failed to
demonstrate the existence of a disability under the fourth prong
in Russell.
C. Permanent Impairment Benefits
The final issue raised by Plaintiff’s appeal is whether the
Full Commission erred in finding that Plaintiff has no permanent
partial impairment warranting recovery for a scheduled injury
pursuant to N.C. Gen. Stat. § 97-31.
“To obtain an award of benefits under any subsection of
[N.C. Gen. Stat. §] 97-31, a specific showing that the claimant
has undergone a diminution in wage-earning capacity is not
required. Instead, disability is presumed from the fact of
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injury.” Grant v. Burlington Indus., Inc., 77 N.C. App. 241,
250–51, 335 S.E.2d 327, 334 (1985). “Thus, the Industrial
Commission may enter an award pursuant to section 97-31 without
finding that the employee is disabled.” Childress v. Fluor
Daniel, Inc., 162 N.C. App. 524, 528, 590 S.E.2d 893, 897
(2004).
In the parties’ pre-trial agreement, Plaintiff explicitly
identified benefits owed under N.C. Gen. Stat. § 97-31 as one of
the contested issues to be resolved before the Deputy
Commissioner. Nevertheless, the opinion and award of the Deputy
Commissioner did not address this issue by way of findings of
fact or conclusions of law. Plaintiff assigned the Deputy
Commissioner’s failure to address this issue as error in his
Form 44 Application for Review to the Full Commission. The Full
Commission’s opinion and award has no conclusions of law
regarding Plaintiff’s right to recovery under N.C. Gen. Stat. §
97-31. The Full Commission’s opinion and award does contain the
following pertinent findings of fact:
5. Defendant-employer eventually referred
plaintiff to Dr. Dixon W. Gerber, an
orthopedic surgeon. Dr. Gerber examined
plaintiff on 27 June 2001. Dr. Gerber’s
medical record from 27 June 2001 reflects
that plaintiff suffered a neck injury as a
result of the 2 March 2001 work injury. In
that record, Dr. Gerber reflects plaintiff’s
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impression that “[plaintiff] basically feels
that he could probably return to work at any
time.” Dr. Gerber found that plaintiff was
at maximum medical improvement and has no
permanent partial disability. Dr. Gerber
released plaintiff from treatment without
restrictions as of 2 July 2001.
. . . .
22. Dr. Rhyne testified that plaintiff’s
probable permanent partial disability would
be three percent (3%), or if plaintiff had
to have surgery, the rating would be in the
range of five to fifteen percent (5–15%).
The Commission assigns greater weight to the
testimony of Dr. Gerber regarding
plaintiff’s permanent partial disability
rating as Dr. Gerber was plaintiff’s
authorized treating physician and Dr. Rhyne
only performed a one time independent
medical evaluation. Therefore, based on Dr.
Gerber’s testimony, the Commission finds
plaintiff has no permanent partial
disability.
(Alteration in original).
Plaintiff contends that Finding of Fact 22 is not supported
by competent evidence and irreconcilably conflicts with Finding
of Fact 25, which reads:
25. Based upon the preponderance of the
evidence in view of the entire record, the
medical treatment plaintiff received for his
neck condition, on or before 18 May 2009,
was reasonable and medically necessary, and
was reasonably calculated to effect a cure
and give relief from plaintiff’s 2 March
2001 compensable injury by accident.
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We agree that Finding of Fact 22 lacks evidentiary support but
disagree that Finding of Fact 22 and 25 are irreconcilable.
In Finding of Fact 22, the Full Commission assigned greater
weight to the testimony of Dr. Gerber based on the following
facts: “Dr. Gerber was plaintiff’s authorized treating physician
and Dr. Rhyne only performed a one time independent medical
evaluation.” However, there is no record evidence that Dr.
Gerber was Plaintiff’s treating physician. Record evidence
shows that Plaintiff presented to Dr. Gerber once, on 27 June
2001, for an evaluation. Thus, Dr. Gerber did not provide
treatment to Plaintiff on an ongoing basis and has not seen
Plaintiff since 27 June 2001, a few months after the 2 March
2001 injury. Furthermore, Dr. Gerber was not deposed by either
party and did not provide testimony at the hearing.2
Accordingly, we hold that the facts supporting the Full
Commission’s decision to assign greater weight to Dr. Gerber’s
opinion were not supported by competent evidence.
However, we disagree with Plaintiff’s contention that
Finding of Fact 22 cannot be reconciled with Finding of Fact 25.
In Finding of Fact 22, the Full Commission agreed with Dr.
2
The medical record generated by Dr. Gerber after Plaintiff’s 27
June 2001 evaluation was received into evidence as a documentary
exhibit to evince Dr. Gerber’s opinion regarding Plaintiff’s
permanent partial impairment rating.
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Gerber’s assessment that on 27 June 2001, Plaintiff was at
“maximum medical improvement and has no permanent partial
disability.” In Finding of Fact 25, the Full Commission found
that all of “the medical treatment plaintiff received for his
neck condition, on or before 18 May 2009, was reasonable and
medically necessary, and was reasonably calculated to effect a
cure and give relief from plaintiff’s 2 March 2001 compensable
injury by accident.”
“Maximum medical improvement” refers to the point in time
when the injury has stabilized and the healing period has ended.
Knight v. Wal-Mart Stores, Inc., 149 N.C. App. 1, 12–13, 562
S.E.2d 434, 442–43 (2002), aff’d per curiam, 357 N.C. 44, 577
S.E.2d 620 (2003). When a claimant reaches maximum medical
improvement, he or she may receive scheduled benefits pursuant
to N.C. Gen. Stat. § 97-31. Id. at 13, 562 S.E.2d at 443. A
“permanent partial disability rating” is a factual determination
by a medical professional indicating the degree to which the
scheduled body part has been permanently impaired for purposes
of determining compensation under N.C. Gen. Stat. § 97-31. See
generally Leonard T. Jernigan, Jr., North Carolina Workers’
Compensation: Law and Practice with Forms § 13:2, at 143 (4th
ed. 2004) (discussing how impairment ratings are often
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determined in workers’ compensation cases). Thus, a finding
that Plaintiff is at maximum medical improvement with no
permanent partial disability denotes that Plaintiff’s
compensable injury has healed and/or stabilized, with no
permanent functional loss to his neck and/or back. The fact
that Plaintiff has no permanent functional impairment, however,
does not mean, ipso facto, that ongoing medical treatment will
not be necessary to “effect a cure and give relief” to the
underlying injury. Accordingly, we disagree that Finding of
Fact 22 and 25 are irreconcilable. Nevertheless, if, on remand,
the Full Commission again finds Plaintiff to have no permanent
partial impairment, the Full Commission is instructed to enter
additional findings reconciling that finding with Finding of
Fact 25.
In summary, because the Full Commission failed to enter
conclusions of law regarding Plaintiff’s right, if any, to
permanent partial impairment benefits under N.C. Gen. Stat. §
97-31, and because Finding of Fact 22 is insufficient as
described above, we vacate Finding of Fact 22 and remand this
issue for further determination by the Industrial Commission.
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IV. Conclusion
For the foregoing reasons, we remand the question of
Plaintiff’s right to temporary total and temporary partial
disability under the second and third prongs in Russell to the
Full Commission for additional fact finding. Furthermore, we
vacate Finding of Fact 22 in the Full Commission’s opinion and
award and remand for additional findings of fact and conclusions
of law on the issue of Plaintiff’s entitlement to permanent
partial impairment benefits under N.C. Gen. Stat. § 97-31. In
all other respects, the opinion and award of the Full Commission
is affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Judges STROUD and DILLON concur
Report per Rule 30(e).