I respectfully dissent the majority decision to reverse the ruling of the Deputy Commissioner in this case.
I disagree with the majority's finding that Dr. Jeffrey C. Beane released plaintiff to return to work with "no restrictions" on 1 June 1999. Dr. Beane recommended that plaintiff return to her work duties "as tolerated." This release appears to be an acknowledgement that plaintiff had ongoing symptoms which would likely prevent her from doing all of her pre-injury work duties. Accordingly, plaintiff's return to work should be characterized as a trial return to work rather than as a complete medical release to return to her pre-injury employment.
I also disagree with the characterization by the majority that plaintiff resigned from her employment for reasons unrelated to her injury by accident and solely to obtain employment closer to her family. The greater weight of the evidence in this case indicates that plaintiff's decision to change jobs was based in significant part upon her limitations caused by her compensable injury and her fear of termination because she was unable to work at her pre-injury level.
As a result of her injury, plaintiff's wages are diminished. The Deputy Commissioner correctly found that plaintiff is partially disabled and entitled to partial disability compensation pursuant to N.C. Gen. Stat. § 97-30, based upon the difference between her pre-injury wages and her current wages. Plaintiff is also entitled to continuing medical treatment arising from her compensable injury.
I also disagree with Finding of Fact #9 in which the majority finds that there is insufficient evidence to prove that plaintiff retained any disability beyond 1 June 1999 as a result of her compensable injury by accident. All of the evidence indicates that plaintiff had physical limitations that prevented her from working at her pre-injury level. Therefore, her decision to change to a job that she could do is related to her injury and her diminution in wages constitutes a "disability" under the Workers' Compensation Act.
For these reasons, the decision of the Deputy Commissioner should be affirmed.
S/___________________ BERNADINE S. BALLANCE COMMISSIONER