dissenting.
At the outset I point out that I find no fault in providing total permanent disability for the injuries and loss of ability to earn wages suffered by this claimant. A worker who has suffered injuries which render him unable to work and earn any wages *548should be so compensated. Unfortunately our legislature has thus far enacted no legislation which would permit it.
The majority of this Court has today rewritten a significant feature of our Workers’ Compensation Act through the process of “judicial legislation.” The rules governing compensation under the Act have their origin in a legislative act — they are not “judge-made” and are therefore not subject to change at the whim of the appellate courts.
N.C.G.S. § 97-31 provides, in pertinent part:
In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation, including disfigurement, to wit:
(23) For the total loss of use of the back, sixty-six and two-thirds per centum (66 and % °/o) of the average weekly wages during 300 weeks. The compensation for partial loss of use of the back shall be such proportion of the periods of payment herein provided for a total loss as such partial loss bears to total loss, except that in cases where there is 75 per centum (75%) or more loss of use of the back, in which event the injured employee shall be deemed to have suffered “total industrial disability” and compensated as for total loss of use of the back. (Emphasis added.)
Chairman William Stephenson of the North Carolina Industrial Commission in his dissent from the Full Commission’s Opinion and Award of 7 September 1982 explained the history of this provision of this statute:
Prior to July 1, 1955, impairment to the back was a “general nature” impairment, and the money an injured employee received for the same was tied to his ability to work and earn wages. Almost every back disability case was litigated. In 1955, the Industrial Commission saw the need to designate the back as a specific member of the body and sponsored Chapter 1026 of the Session Laws of 1955. Since then, the amount of money one receives for a disability to the back is in no way related to his capacity to earn.
*549The issues in this case are not novel. N.C.G.S. § 97-31(23) and its meaning have been discussed by the Court in its decisions in Little v. Food Service, 295 N.C. 527, 246 S.E. 2d 743 (1978) and Perry v. Furniture Co., 296 N.C. 88, 249 S.E. 2d 397 (1978).
In Little, medical testimony indicated that plaintiff sustained an injury to her spinal cord, which was not repaired by subsequent surgery, and which resulted in incomplete use of the extremities, weakness of grip, generalized weakness in both arms and both legs, loss of mobility, numbness to pinprick throughout the body, and difficulty with tactile recognition of objects placed in the hands. One physician rated the plaintiff at 50% physical disability of “total life function” and another physician rated the plaintiff at 40% disability to the neurological system. The Industrial Commission found that plaintiff suffered an average permanent partial disability of 45% of loss of use of her back and compensation was awarded for 135 weeks pursuant to N.C.G.S. § 97-31(23). On appeal, this Court reversed and stated that the award must take into account all other compensable injuries resulting from the accident. The plaintiff would not be limited to an award for permanent disability to the back when uncontradicted evidence indicated other impairments which were compensable under other sections of the Workers’ Compensation Act.
In Perry medical testimony indicated that the plaintiff suffered a 50% permanent partial disability or loss of use of the back and compensation was awarded for 150 weeks pursuant to N.C.G.S. § 97-31(23). The plaintiff testified that he was suffering pain in his back and legs and that he was totally disabled as a result of his pain. Plaintiff contended that therefore he was entitled to compensation for permanent and total disability under N.C.G.S. § 97-29 based upon the evidence. Justice Huskins, writing for the Court, stated:
The language of G.S. § 97-31 . . . compels the conclusion that if by reason of a compensable injury an employee is unable to work and earn any wages he is totally disabled, G.S. § 97-2(9), and entitled to compensation for permanent total disability under G.S. § 97-29 unless all his injuries are included in the schedule set out in G.S. § 97-31. In that event the injured employee is entitled to compensation exclusivély under G.S. § 97-31 regardless of his ability or inability to earn wages in *550the same or any other employment; and such compensation is “in lieu of all other compensation, including disfigurement.” (Emphasis in original.)
296 N.C. at 93-94, 249 S.E. 2d at 401.
In Perry, the Court remanded the case to the Industrial Commission for Findings of Fact as to the amount of permanent disability or loss of use to plaintiffs legs caused by this injury. The Court instructed, “If plaintiff has suffered no loss of use of a leg by reason of his injury, the case is closed. If, in addition to his back injury, he has suffered some loss of use of either or both legs, the Commission shall make Findings of Fact as to the amount and, within statutory limits, issue an Award pursuant to G.S. § 97-31(15).” (Emphasis added.) The court did not indicate that the Commission could consider an award pursuant to N.C.G.S. § 97-29, as contended by the plaintiff, even if there was evidence of permanent disability or loss of use to plaintiffs legs as a result of his compensable injury.
In the instant case, the evidence is clear and unequivocal. The Court of Appeals acknowledged in its opinion that “Dr. Coffee stated that his disability rating for Plaintiffs leg would be zero, since he found no ‘actual functional incapacity’ ” and “Similarly, Dr. Price reported that ‘there is no disability to the leg. He has leg pain but the problem is not in the leg itself but originates in the back.’ ” All of the evidence in this case is that plaintiff sustained an injury to the back and any disability which he retains is a result of this back injury. Chairman Stephenson in his dissenting opinion said “Where is this arachnoiditis? It is in the back.” To argue that inflammation or scarring of the nerves in the spinal canal is not part of the back would be the same as arguing that nerves in the arm or the leg are not part of that particular member.
The Court of Appeals in its opinion states, “In medical terms no functional disability was apparent; however, this by no means excluded the possibility that plaintiff suffered sufficient pain in his legs to be legally disabled within the meaning of the Act.” Relying on the Perry decision, the Court of Appeals found that the Commission was correct in considering the “referred pain” in the plaintiffs legs, in looking beyond Section 97-31(23) and in not limiting plaintiffs award to that section.
*551In my opinion, the Court of Appeals and the Full Industrial Commission have taken it upon themselves to make a medical determination, in direct contradiction to the medical evidence adduced at the hearing, that the plaintiff suffered sufficient pain in his legs to be legally disabled within the meaning of the Workers’ Compensation Act. This is a determination which is beyond the expertise of either the Industrial Commission or the courts. In the absence of expert medical testimony on the subject, neither the commission nor the courts can make a finding as to permanent disability to a specific part of the body.
Where . . . the injury is subjective and of such a nature that laymen cannot, with reasonable certainty, know whether there will be future pain and suffering, it is necessary . . . that there “be offered evidence by expert witnesses, learned in human anatomy, who can testify, either from a personal examination or knowledge of the history of the case, or from a hypothetical question based on the facts, that the plaintiff, with reasonable certainty, may be expected to experience future pain and suffering as a result of the injury proven.” (Citations omitted.)
Gillikin v. Burbage, 263 N.C. 317, 326, 139 S.E. 2d 753, 760-61 (1965).
Where, however, the subject matter — for example, a ruptured disc — is “so far removed from the usual and ordinary experience of the average man that expert knowledge is essential to the formation of an intelligent opinion, only an expert can competently give opinion evidence as to the cause of death, disease, or a physical condition.” Where “a layman can have no well-founded knowledge and can do no more than indulge in mere speculation . . . there is no proper foundation for a finding by the trier without expert medical testimony.” The physical processes which produced a ruptured disc belong to the mysteries of medicine. . . . (Citations omitted.)
Id. at 325, 139 S.E. 2d at 760.
If the Court of Appeals had found that the evidence was not sufficient concerning disability, if any, in the plaintiffs legs, the cause should have been remanded to the commission for further *552findings on that issue in accordance with Perry. There was no evidence and no basis upon which the commission or the Court could find permanent total disability under Section 97-29 on the facts in this case.
The evidence in this case indicates that plaintiff sustained an injury to his back and any disability which plaintiff retains is as a result of the back injury. The majority of the Full Commission and the Court of Appeals have significantly bent the law to provide payment under Section 97-29 for permanent total disability. There is no evidence that the plaintiff has sustained an injury to any portion of his person other than his back. The evidence is unequivocal that all of the plaintiffs problems originate in his back and that he is entitled to compensation solely under Section 97-31(23) for loss of use of the back.
The rule in Little and Perry is clear and sound. If the plaintiffs injury is included in the schedule set out in N.C.G.S. § 97-31, plaintiff is entitled to compensation exclusively under the terms of that section. As the Court has said numerous times, this is true from the language of the statute itself. For the very reasons set out by Chairman Stephenson in his dissenting opinion quoted above, the General Assembly has made a policy decision that the amount of money an employee can receive for a permanent disability to the back, as well as any other injury to a scheduled member of the body, is not related to his capacity to earn wages in the same or any other employment. Neither the Industrial Commission nor the courts have authority to alter or bend this legislative directive in individual cases, no matter how compelling the claim may be. The legislature has acted for legitimate reasons and the commission and the courts are bound to carry out the law as it is written.
I would applaud legislative action amending our Workers’ Compensation Act to provide this claimant the award mistakenly allowed him by the Full Commission, the Court of Appeals and the majority in the opinion in this case. In the absence of such an amendment, I would vote to uphold the Act as it is written. I would reverse the Court of Appeals and remand for an appropriate award under N.C.G.S. § 97-31(23).