The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before the Deputy Commissioner.
The appealing party has shown good grounds to reconsider the evidence. Upon reconsideration of the evidence, the undersigned reach the same facts and conclusions as those reached by the Deputy Commissioner with some modifications regarding the payment of benefits during periods plaintiff was unable to work because of medical treatment. The Full Commission, in their discretion, has determined that there are no good grounds in this case to receive further evidence or to rehear the parties or their representatives.
2. An employee-employer relationship existed between plaintiff-employee and defendant-employer.
3. St. Paul Fire Marine was the compensation carrier on the risk.
4. Plaintiffs applicable average weekly wage is $617.88.
2. Plaintiff previously worked for a construction company involved in building office buildings, including high-rise buildings. In the ten years preceding his employment with defendant-employer, plaintiff worked for three different employers. Plaintiff began working for defendant, a commercial construction company, in March 1991 as a carpentry superintendent.
3. On or about December 18, 1992, plaintiff sustained an admittedly compensable injury by accident while working for defendant. Plaintiff was helping to remove concrete forms from a three and one-half story structure at UNC-Greensboro. One of the forms struck plaintiff on the left side of his head and knocked him down. Plaintiff continued to work subsequent to the accident.
4. Following the accident, plaintiff was evaluated by and came under the care of Dr. T. K. Wantanabe, an otolaryngologist with Cary ENT Clinic. CT scans of the temporal bone showed no evidence of fracture. Dr. Watanabe noted some possible granulation tissue in the left ear and suspected possible post-traumatic Menieres disease. This disease diagnosis cannot be confirmed objectively, but could be explored surgically. Dr. Watanabe suggested surgery as a possibility.
5. Plaintiff was also evaluated at Duke Medical Center, where he had hearing loss evaluations, sleep studies, and psychiatric evaluation. After the accident, plaintiff moved to Fredericksburg, Virginia, where he was assessed and treated by Dr. Richard Linde, an otolaryngologist.
6. Due to his compensable accident, plaintiff sustained injury to his left ear that resulted in a loss of hearing, primarily in the low-pitched frequencies in the left ear. Plaintiff also has bilateral loss of hearing in the high frequency range, which may have preceded the accident, but which was most likely aggravated by the blow to plaintiffs head. Plaintiff has been fitted with a hearing aid.
7. The blow to plaintiffs head also caused tinnitus, or ringing, in his left ear. Dr. Linde recommended that plaintiff follow-up with treatment through the Tinnitus Treatment Center at the University of Maryland. Dr. Wantanabe also strongly recommended this program as world-renowned. However, plaintiff did not seem interested and has not scheduled an appointment at the center.
8. Plaintiffs injury also caused vertigo. Plaintiff suffers from mild balance problems and intermittent dizziness. Due to his dizziness, and as recommended by Dr. Linde, plaintiff should not be working in jobs that require climbing on ladders or working at heights.
9. In 1995, at the direction of the Commission, plaintiff had a neuro-psychiatric evaluation by Dr. Barry Hurwitz at Duke. Plaintiff reported for evaluation by Dr. Hurwitz on May 3, 1995. Plaintiff then underwent various tests, including an MRI brain scan, a sleep test, as well as WAIS and MMPI evaluations. The sleep study could not be completed because plaintiff did not sleep adequately.
10. Dr. Hurwitz reviewed the test results as well as the records plaintiff took with him. Testing revealed a normal-range IQ. Dr. Hurwitz found no organic or psychiatric features to suggest that plaintiff suffered a closed head injury. Dr. Hurwitz did find plaintiff had hearing loss and a significant sleep disturbance that warranted further study. He was not sure if the sleep problems were due to a disturbance or sleep apnea due to obesity.
11. Plaintiff has some ongoing balance problems, hearing loss, and tinnitus. The balance difficulties and plaintiffs occasional vertigo have interfered with plaintiffs pursuit of employment that would require him to work at great heights. However, these conditions have not adversely impacted plaintiffs wage-earning capacity. The opinion expressed by Dr. Linde that plaintiff is disabled from employment is not supported by the greater weight of the evidence.
12. During the periods at issue, plaintiff has worked almost continuously. He has been able to earn wages as a construction supervisor for other employers at the same or greater wages than those he earned in defendants employment.
13. After the accident, plaintiff continued working for defendant at the UNC-Greensboro project for about six months. He later resigned and began working for Donahoe Construction. However, he left that position after only a few weeks due to disagreements with management. Around July 1993, plaintiff began working for Sal Construction in Cary, North Carolina. He continued in that employment until April 1994, when he began working on a project in Greensboro for Weaver Construction. He remained in that employment until about June 1994 when he quit and moved to Virginia.
14. In August 1994 plaintiff began working for Merritt-Meridian Construction Company as a supervisor of construction of a one-story sports complex. He had an annual salary of $45,000, plus use of a company vehicle and reimbursement for gasoline. At the time of the hearing before the deputy commissioner, plaintiff was still working as a general construction superintendent for Merritt Meridian. He continued in this employment until October 1995.
15. From October 1995 to December 1996, plaintiff worked as a construction supervisor for L. White and Company. He supervised construction of a one-story manufacturing facility. Plaintiffs annual salary was $35,000 and he was provided a company vehicle and gasoline reimbursement.
16. In January 1997, plaintiff began working for Sweet Associates, Inc., supervising construction of a five-story building. His annual salary was $52,000, with a company vehicle and gasoline reimbursement provided. Plaintiff continued in that employment until February 1998.
17. In February 1998, plaintiff began working for MLB Industries as a construction supervisor on a one-story manufacturing facility. His annual salary was $55,000, with a company vehicle and gasoline reimbursement provided. Plaintiff was still working for MLB Industries as of May 1998, when he provided information in response to defendants interrogatories.
18. Since leaving defendant-employer, plaintiff has been employed almost continuously as a construction superintendent. Plaintiffs injuries have not prevented him from returning to his prior occupation in construction. Plaintiff has not suffered any diminution in his wage-earning capacity due to his injury by accident.
19. Pursuant to plaintiffs motion and the order of the Deputy Commissioner filed March 3, 1997, defendants paid plaintiff benefits for total disability from January 13, 1997 through July 6, 1998. Because plaintiff was earning wages in competitive, gainful employment during this period, these payments were not due under the Act.
20. As a result of the compensable injury, plaintiff may be in need of ongoing medical treatment for his hearing loss, balance, and tinnitus in the form of a tinnitus treatment program such as the one at the University of Maryland recommended to plaintiff by the medical providers. This medical treatment may also include medication, periodic evaluations, if necessary, and the hearing aid devices recommended by Dr. Linde.
21. Plaintiff has not sustained a closed head injury and does not suffer any ongoing mental impairment due to his accident.
2. Although plaintiff has sustained permanent damage to his left ear, this injury has not resulted in any diminution of plaintiffs wage-earning capacity. The greater weight of the evidence fails to establish that plaintiff is incapable of earning wages in any employment. N.C. Gen. Stat. 97-29; Hilliard v. Apex Cabinet Co.,305 N.C. 593, 290 S.E.2d 682 (1982).
3. Defendants overpaid plaintiff compensation benefits for total disability from January 13, 1997 through July 6, 1998. Defendants are entitled to a credit for all amounts paid to plaintiff as total disability compensation during this period. This credit would apply to any future period of disability caused by medical treatment related to the compensable injury. N.C. Gen. Stat.97-42.
2. Plaintiffs claim for additional or ongoing total disability compensation benefits is DENIED.
This is the ___ day of August, 2000.
S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER
CONCURRING:
S/______________ RENE C. RIGGSBEE COMMISSIONER
S/_______________ CHRISTOPHER SCOTT COMMISSIONER