Niple v. Seawell Realty & Indus. Co., 8710IC495

• Decision Date: 15 December 1987
• Docket Number: No. 8710IC495,8710IC495
• Citation: 88 N.C.App. 136,362 S.E.2d 572
• Court: North Carolina Court of Appeals
• Parties: Virginia NIPLE, Employee, v. SEAWELL REALTY & INDUSTRIAL COMPANY, Employer, Pennsylvania National Mutual Casualty Insurance Company, Insurer.

Page 572

362 S.E.2d 572

88 N.C.App. 136

Virginia NIPLE, Employee, v.SEAWELL REALTY & INDUSTRIAL COMPANY, EmployerPennsylvania National Mutual Casualty Insurance Company, Insurer.

No. 8710IC495.

Court of Appeals of North Carolina.

Dec. 15, 1987.

Gabriel, Berry, Weston, & Weeks by M. Douglas Berry, Greensboro, for plaintiff-appellee.

Nichols, Caffrey, Hill, Evans, & Murrelle by Thomas C. Duncan, Greensboro, for defendant-appellant.

BECTON, Judge.

I

The sole issue presented by this Worker's Compensation case is whether the Industrial Commission correctly ruled that plaintiff, Virginia Niple, is totally and permanently disabled within the meaning of N.C.Gen.Stat. Sec. 97-29(1985).

The uncontroverted evidence before the Commission tended to show the following facts.Plaintiff was born 20 May 1918 and, at the time of the hearing, was 67 years old.She had three years of college education, and her employment history included work as a secretary, a receptionist, general manager and vice president of a consumer research firm, personnel and purchasing manager for a data processing company, and public relations work.

Beginning in August of 1980, plaintiff worked as a real estate agent.She was injured on 23 September 1981, when she fell while showing a house to potential buyers.At the time of the accident, she had been employed by Defendant, Seawell Realty and Insurance, for one month.

Following the accident, plaintiff was treated by Dr. D.B. Olin for injury to her right ankle.She continued to work with the aid of crutches, but the foot remained painful and swollen.She was referred, on 11 March 1982, to Dr. Peter Whitfield, an orthopedic surgeon, who treated her with a cast for "chronic right ankle strain," and, on 27 January 1983, Dr. Whitfield surgically reconstructed the ligaments around plaintiff's right ankle.Thereafter, plaintiff worked part time but suffered from progressively more pain until she stopped working in August of 1983.She was admitted to the Duke University pain clinic from 20 February to 17 March 1984, and was also seen by a neurologist, but the persistent pain was not alleviated.

At the time of the hearing, plaintiff experienced chronic pain such that she was unable to remain on her right leg for more than four or five cumulative hours per day, and even sitting for more than ten or fifteen minutes without elevating her foot was painful.Dr. Whitfield stated his opinion that the pain would be permanent and that plaintiff suffered a sixty percent permanent partial disability of the leg below the knee.

James M. Ratcliff, a vocational rehabilitation specialist, testified that, in his opinion, plaintiff could not return to work as a real estate agent, and that he could not think of any other employment she could do based on her age, education, experience, and medical problem.

Based on this and other evidence, the deputy commissioner found facts, concluded as a matter of law that plaintiff had a 60% permanent partial disability of the right foot, and awarded compensation under N.C.Gen.Stat. Sec. 97-31.Citing Whitley v. Columbia Manufacturing Co., 318 N.C. 89, 348 S.E.2d 336(1986), the Commission revised some of the the Deputy Commissioner's findings of fact, and concluded as a matter of law that plaintiff was entitled to benefits for total and permanent disability pursuant to N.C.Gen.Stat. Sec. 97-29.

II

Defendants concede that, under the Supreme Court's decision in Whitley, the fact that plaintiff suffered from a "scheduled" injury under Section 97-31--a disability to her foot--does not preclude her recovery of total disability benefits under Section 97-29.However, Defendants contend that the only evidence as to the degree of disability is Dr. Whitfield's assignment of 60 percent disability of the leg below the knee and Mr....