Kennedy v. Duke University Medical Center, 9010IC64

• Decision Date: 18 December 1990
• Docket Number: No. 9010IC64,9010IC64
• Citation: 398 S.E.2d 677,101 N.C.App. 24
• Court: North Carolina Court of Appeals
• Parties: Barney A. KENNEDY, Employee-Plaintiff, v. DUKE UNIVERSITY MEDICAL CENTER, Self-Insured, Employer-Defendant.

Page 677

398 S.E.2d 677

101 N.C.App. 24

Barney A. KENNEDY, Employee-Plaintiff, v. DUKE UNIVERSITY MEDICAL CENTER, Self-Insured, Employer-Defendant.

No. 9010IC64.

Court of Appeals of North Carolina.

Dec. 18, 1990.

The Defendant now appeals the opinion and award of the full Commission.

Taft, Taft & Haigler by Robin E. Hudson, Raleigh, for employee-plaintiff.

Office of the University Counsel, Duke University by Andrea K. Sigman, Durham, for employer-defendant.

DUNCAN, Judge.

Defendant's appeal asserts three assignments of error, which are essentially as follows. First, the defendant contends that there is no competent evidence in the record to support the full Commission's Finding of Fact number 6, which states that the plaintiff was incapable of earning any wages from the date of the accident through the date of the hearing before the Deputy Commissioner. Second, the defendant argues that the full Commission erred in failing to make findings regarding both the extent and the permanency of the plaintiff's disability. Third, the defendant asserts that the Commission's findings of fact did not support the conclusion that the plaintiff was entitled to temporary total disability benefits from the date of the accident through the date of the hearing before the Deputy Commissioner. We find no merit in any of these contentions and, therefore, affirm the opinion and award of the Industrial Commission.

I

In order to obtain compensation under the Workers' Compensation Act, the claimant must prove the existence of a disability as well as its extent. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982). "Disability" is defined by N.C.Gen.Stat. § 97-2(9) (1985) as the "incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment." "To support a conclusion of disability, the Commission must find: (1) that the plaintiff was incapable after his injury of earning the same wages he earned before his injury in the same employment, (2) that the plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment and (3) that the plaintiff's incapacity to earn was caused by his injury." Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 378-79 (1986).

The defendant does not contend that the Commission failed to make the findings necessary to a determination of disability. Rather, the defendant contends that there was no competent evidence upon which the Commission could properly rely in finding that the plaintiff did not have the capacity to earn any wages. We disagree.

We note at the outset that under the Workers' Compensation Act, the Industrial Commission is vested with exclusive authority to find facts. Anderson v. Lincoln Constr. Co., 265 N.C. 431, 144 S.E.2d 272 (1965); Moore v. Adams Elec. Co., 259 N.C. 735, 131 S.E.2d 356 (1963). On appeal, therefore, the Court of Appeals is bound by the Commission's findings of fact when they are supported by direct evidence or by reasonable inferences drawn from the record. Gosney v. Golden Belt Mfg., 89 N.C.App. 670, 671, 366 S.E.2d 873, 874, disc. review denied, 322 N.C. 835, 371 S.E.2d 276 (1988). In the instant case, our review of the transcript indicates that there was ample competent evidence upon which the Commission could properly rely in support of its finding.

Dr. Lawrence Frank, who saw the plaintiff at the request of the Duke University Workers' Compensation Office, testified that the plaintiff was suffering from a "lumbosacral strain that had become chronic." He assigned the plaintiff a 10 percent permanent partial disability rating. He acknowledged, however, that he had not taken any vocational factors into account. Dr. John W. Cromer, Jr., who was employed by the defendant as the Assistant Director of the Employee Occupational Health Center, testified that as of six days prior to the hearing before the Deputy Commissioner, the plaintiff was still not able to return to work because his injury continued to produce a great deal of pain and limitation of movement. Mr. Mike Massey, a Vocational Rehabilitation counselor who assessed the plaintiff's vocational skills and potential, testified that it was not reasonable to expect that a job could presently be found for the plaintiff, given his physical limitations coupled with his vocational abilities. Ms. Joan Dunston, the Patient Service Supervisor at Duke, testified that she "did not want him (the plaintiff) there (at work)" because her expectations of his working capacity could not have been fulfilled. Finally, the plaintiff himself testified that he had not been able to decrease his level of pain to a point at which he could comfortably perform his everyday activities, such as household chores, yard work, cooking, and even bowel movements.

Our Supreme Court has approved the use of expert medical testimony on the issue of a claimant's ability to earn wages. See Fleming v. K-Mart Corp., 312 N.C. 538, 544, 324 S.E.2d 214, 217 (1985). Similarly, this court has approved the use of testimony by vocational rehabilitation specialists on the issue of wage earning capacity. See Niple v. Seawell Realty and Indus. Co., 88 N.C.App. 136, 139, 362 S.E.2d 572, 574 (1987), disc. review denied, 321 N.C. 744, 365 S.E.2d 903 (1988). Testimony by the plaintiff him/herself has also been found to be competent on the issue of wage earning capacity. See Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 325, 69 S.E.2d 707, 714 (1952); Niple, 88 N.C.App. at 139, 362 S.E.2d at 574. In sum, we find the testimony of these individuals to be amply competent to support the Commission's finding that the plaintiff had no capacity to earn wages in either the same or any other employment up to the date of the hearing before the Deputy Commissioner.

The defendant further claims that the Commission erroneously placed the burden of proving wage earning capacity upon the defendant. The full Commission opened its opinion with the following statement: "Plaintiff sought benefits for alleged continuing total disability, and the defendant, having tacitly conceded that he [the plaintiff] remained incapable of returning to his former employment as a patient service aide, had the burden of showing that the plaintiff was capable of other employment. That it failed to do." The defendant contends, in the first instance, that it did not "tacitly concede" anything. Second, the defendant contends that the Commission acted under a misapprehension of law when it relied upon the holding of Bridges v. Linn-Corriher Corp., 90 N.C.App. 397, 368 S.E.2d 388, disc. review denied, 323 N.C. 171, 373 S.E.2d 104 (1988), to support its statement that "the defendant ... had the burden of showing that the plaintiff was capable of other employment." We do not agree.

First, the above-quoted testimony of Ms. Joan Dunston, the plaintiff's supervisor, tends to support the Commission's reference to the "tacit concession" that the plaintiff was unable to return to his former employment. For a similar finding, see Watson v. Winston-Salem Transit Auth., 92 N.C.App. 473, 374 S.E.2d 483 (1988) (holding that evidence of an employer's refusal to allow an employee to return to work because there was no "light" work available supports a finding that the employee was incapable of earning any wages in the same employment).

Second, while it is the general rule that the plaintiff has the initial burden of proving an impaired wage earning capacity, Watson, 92 N.C.App. at 475, 374 S.E.2d at 485, we do not believe that the full Commission acted under a misapprehension of law in relying upon Bridges to place the burden of proving wage earning capacity upon the defendant under these facts. In Bridges, the plaintiff challenged the sufficiency of the evidence to support the Industrial Commission's finding that he " 'was employable outside [his former employment]' and 'could have earned the same wages he was earning prior to [the date of his accident].' " Bridges, 90 N.C.App. at 398, 368 S.E.2d at 389. Although the plaintiff was capable of doing light work, he claimed that he was nonetheless disabled because, after several attempts, he could not procure employment. The defendant claimed, on the other hand, that the plaintiff was capable of earning wages in employment outside his former industry. The plaintiff's evidence tended to show that he was (1) 61 years old; (2) educated only to the fifth grade; (3) skilled only in work which was physically unsuitable; (4) afflicted with a breathing condition which was easily aggravated; and (5) unable to procure a job even though he had attempted to do so. Id. at 400, 368 S.E.2d at 390. The defendant countered this evidence with a survey prepared by the Employment Security Commission which merely listed the available jobs in the area. Id. However, no evidence was presented that the plaintiff was capable of obtaining any of the jobs listed in the survey. The Bridges court concluded that the evidence was insufficient to support the Commission's finding that the plaintiff was capable of other employment. The court stated:

[B]efore it can be determined that [the] plaintiff is employable and can earn wages it must be established, not merely that jobs are available or that the average job seeker can get one, but that [the plaintiff] can obtain a job taking into account his specific limitations."

Id. at 400-01, 368 S.E.2d at 391.

Bridges did not change the long-standing rule that the claimant has the initial burden of proving that his/her wage earning capacity has been impaired by injury. Rather, Bridges stands for the proposition that once the claimant meets this initial burden, the defendant who claims that the plaintiff is capable of earning wages must come forward with evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account...