Bee v. Purser Construction Service, No. COA06-900 (N.C. App. 4/17/2007), COA06-900

• Court: North Carolina Court of Appeals
• Writing for the Court: McCullough
• Decision Date: 17 April 2007
• Docket Number: No. COA06-900,COA06-900
• Citation: Bee v. Purser Construction Service, No. COA06-900 (N.C. App. 4/17/2007), No. COA06-900 (N.C. App. Apr 17, 2007)
• Parties: CHARLES M. BEE, Employee-Plaintiff, v. PURSER CONSTRUCTION SERVICE, Employer, and CINCINNATI INSURANCE COMPANY, Carrier-Defendants.

Page 1

Unpublished Opinion

CHARLES M. BEE, Employee-Plaintiff, v. PURSER CONSTRUCTION SERVICE, Employer, and CINCINNATI INSURANCE COMPANY, Carrier-Defendants.

No. COA06-900

North Carolina Court of Appeals

Filed April 17, 2007

This case not for publication

North Carolina Industrial Commission I.C. No. 140822.

Appeal by defendant from an opinion and award filed 9 May 2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 7 March 2007.

Brinkley Walser, PLLC, by G. Thompson Miller, for plaintiff appellee.

Jones, Hewson & Woolard, by Lawrence J. Goldman, for defendant appellants.

McCULLOUGH, Judge.

Purser Construction Services and Cincinnati Insurance Company ("defendants") appeal an opinion and award entered by the North Carolina Industrial Commission ("the Commission") finding and concluding that Charles Bee ("plaintiff") is permanently and totally disabled and that plaintiff should not be required to participate in vocational rehabilitation.

Plaintiff was injured by an accident arising out of and in the course of his employment on 17 April 2001 when he injured his backlifting a heavy door. Plaintiff's primary treating physician, Dr. Charles Taft, diagnosed plaintiff's condition as low back pain with degenerative disc disease. Dr. Taft found that plaintiff reached maximum medical improvement on 5 September 2001 and concluded that plaintiff was unable to return to gainful employment due to pain, back problems and a pre-existing right leg injury.

Dr. John Hayes conducted an independent medical evaluation of plaintiff and concluded that if plaintiff was to return to work he must be limited to no more than 50 pounds no more than 4 times a day or 25 pounds frequently. He further stated that, if any of the work activities increased pain in plaintiff's back or right leg, then the restrictions would have to be increased.

Plaintiff testified that, as a result of the injury sustained during employment, he suffers debilitating back pain which interferes with his sleep and substantially limits his daily activities and his ability to focus on tasks. He further testified that physical therapy, home exercise and pain medication have failed to provide any relief from the day-to-day pain.

Plaintiff participated in a functional capacity evaluation in which the physical therapist concluded that plaintiff "'is able to tolerate work in the light category with maximal safe lifting limits of 34 pounds from floor to knuckle, 34 pounds from knuckle to shoulder and 24 pounds from shoulder to overhead on an occasional basis for a full time 8 hour work period.'" During the functional capacity evaluation, plaintiff reported experiencing pain levels of 8 out of 10 and subsequent to the evaluation experienced steady pain in his back and numbness from his leg down into his foot.

Defendants introduced videotaped evidence depicting plaintiff unhooking a camper from his truck at the beach and lowering the trailer, riding a bike, using a metal detector on the beach for approximately 50 minutes, and walking with his wife to get onto a boat.

After reviewing the report of the functional capacity evaluation and the videotaped evidence, Dr. Taft testified that he did not think plaintiff's back would be able to tolerate lifting 34 pounds on an occasional or repetitive basis. He further testified that plaintiff could benefit from vocational rehabilitation but that he was not optimistic that there would be a job that plaintiff would be able to do.

The Commission concluded that plaintiff was totally and permanently disabled and that vocational rehabilitation was not an appropriate option for plaintiff. From the opinion and award entered thereafter, defendants appeal.

Defendants contend on appeal the Commission erred in concluding that plaintiff was totally and permanently disabled.

Appellate review of an Industrial Commission decision "is limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law." Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). "The findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings." Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 353, 524 S.E.2d 368, 371, disc. review denied, 351 N.C. 473, 543 S.E.2d 488 (2000). We review the Commission's conclusions of law de novo. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 184, 585 S.E.2d 264, 267 (2003).

In a claim for permanent and total disability, an employee must prove the existence of the disability and its extent. Saunders v. Edenton Ob/Gyn Ctr., 352 N.C. 136, 530 S.E.2d 62 (2000). An employee may meet this burden of proof 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 or she 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.'" Knight v. Wal-Mart Stores, Inc., 149 N.C. App. 1, 7, 562 S.E.2d 434, 439 (citation omitted), disc. review denied, 355 N.C. 749, 565 S.E.2d 667 (2002), aff'd, 357 N.C. 44, 577 S.E.2d 620 (2003).

The Commission made the following findings of fact: 3. Dr. Taft found that plaintiff had reached MMI on or about September 5, 2001. Dr. Taft gave plaintiff a 7% permanent partial disability rating to his...