Whitley v. Columbia Lumber Mfg. Co., 805PA85

• Decision Date: 29 August 1986
• Docket Number: No. 805PA85,805PA85
• Citation: 318 N.C. 89,348 S.E.2d 336
• Court: North Carolina Supreme Court
• Parties: Benjamin A. WHITLEY, Employee, v. COLUMBIA LUMBER MFG. CO., Employer, and Indiana Lumbermens Mutual Insurance Company, Insurer.

Page 336

348 S.E.2d 336

318 N.C. 89

Benjamin A. WHITLEY, Employee, v. COLUMBIA LUMBER MFG. CO., Employer, and Indiana Lumbermens Mutual Insurance Company, Insurer.

No. 805PA85.

Supreme Court of North Carolina.

Aug. 29, 1986.

Charles M. Welling, Charlotte, for plaintiff-appellant.

George C. Collie and James F. Wood, III, Charlotte, for defendants-appellees.

EXUM, Justice.

This is a workers' compensation case. Plaintiff, Benjamin A. Whitley, sustained injuries to his right arm and left hand while operating a bench saw in the employment of defendant Columbia Lumber Mfg. Co. The Industrial Commission concluded that plaintiff was totally and permanently disabled and entitled to compensation under N.C.G.S. § 97-29. ¹ On appeal to the Court of Appeals defendants did not dispute that plaintiff was totally and permanently disabled as that term is used in section 29. They argued, however, the schedule of benefits codified at section 31 was plaintiff's exclusive remedy. The Court of Appeals, relying on Perry v. Furniture Co., 296 N.C. 88, 249 S.E.2d 397 (1978), agreed and reversed the Commission's award. The

sole question presented by this appeal is whether an employee who suffers an injury scheduled in section 31 may recover compensation under section 29 instead of section 31 if he is totally and permanently disabled. We hold that he can and reverse the Court of Appeals.

I.

Evidence before the Commission tended to show the following: Plaintiff was injured when a scrap of wood flew out of a saw and struck his right arm and left hand. As a result, plaintiff can lift only ten pounds of weight. Before he was injured he regularly lifted seventy-five to one hundred pounds of lumber. Plaintiff no longer can drive nails with a hammer or work well with his hands.

Plaintiff was born 15 June 1924 and at the time of the hearing was sixty years old. He attended the fourth grade of school. His only substantial work experience was in the lumber industry as a cabinet maker. He can measure lumber but cannot read or write.

An orthopedic surgeon, John H. Caughran, examined plaintiff. His tests showed plaintiff suffered impaired right elbow function, limited right wrist extension, and markedly limited right-hand finger function. Right hand grip strength was twenty-five pounds and left hand grip strength was forty pounds; normal grip strength ranges between one hundred and one hundred thirty pounds.

Dr. Caughran opined that plaintiff could not return to his previous job in the cabinet shop or do other manual labor. He believed, on the basis of plaintiff's age and illiteracy, plaintiff was not a candidate for vocational retraining. He concluded in light of plaintiff's medical infirmities that plaintiff's "job potential is zero."

With this and other evidence before it, the deputy commissioner made the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. Plaintiff was born on June 15, 1924. He was in the 4th grade when he stopped attending school to begin working on a farm where he continued to work until he served in the army from 1942 through November 13, 1943. Although plaintiff can neither read nor write, upon being discharged from the Army, he entered a trade school where he was trained as a cabinet maker.

....

3. On May 24, 1982 plaintiff sustained an injury by accident arising out of and in the course of his employment with the defendant-employer when he sustained injuries to his right forearm and left hand while operating a bench saw....

....

5. Plaintiff was ... examined by Dr. John Caughran, at defendant's request on May 12, 1983 for the purpose of rendering an independent examination. Dr. Caughran was of the opinion that plaintiff had reached maximum medical improvement as of 5/12/83 and that he was permanently and totally disabled as a result of his injuries which Dr. Caughran rated as 30% of the left hand and 75% of the right hand.

....

7. As a result of his injury by accident on May 24, 1982 plaintiff has sustained a 75% permanent partial disability to his right hand and a 30% permanent partial disability of his left hand.

8. Dr. Caughran was of the opinion that plaintiff would never be able to return to his previous work as a carpenter in a cabinet shop operating saws and heavy machinery. Furthermore, the loss of dexterity, loss of motion in the right hand, the profound weakness of the right hand and marked weakness of the left hand also preclude any consideration of plaintiff returning to any type of manual labor.

9. Due to plaintiff's age and his inability to read or write, he is not a viable candidate for job retraining by Vocational Rehabilitation. Consequently, he is * * *

permanently and totally disabled as a result of his injury by accident.

* * *

The above findings of fact and conclusions of law engender the following additional

CONCLUSIONS OF LAW

1. As a result of his injury by accident sustained on May 24, 1982, plaintiff is entitled to compensation for 75% permanent partial disability to his right hand, and 30% permanent partial disability to his left hand. G.S. § 97-31(12).

2. Although plaintiff is permanently totally disabled, all of his injuries are included in the schedule set out in G.S. § 97-31, and the fact that an injury is one enumerated in the schedule of payments set forth under this section precludes the Commission from awarding compensation under any other provision of the Act....

The Full Commission adopted the hearing commissioner's findings of fact, and defendants have excepted to none of these. The Commission, however, amended the deputy commissioner's conclusions of law as follows:

As a result of his injury by accident on 24 May 1982, plaintiff is permanently and totally disabled and is entitled to lifetime benefits under the Act. G.S. 97-2(9), G.S. 97-29.

Upon these findings of fact and conclusions of law, the Commission awarded plaintiff compensation, subject to attorney's fees, for the remainder of his life.

II.

Plaintiff contends the Court of Appeals erred in reversing the Commission's award of lifetime benefits for total and permanent disability as provided by section 29. The Commission found as fact that plaintiff suffered partial medical disability to his arms or, in the language of the Act, partial loss of use of his arms. The schedule of compensation codified at section 31 lists partial loss of use of arms as a compensable injury. The resolution of plaintiff's claim, therefore, depends upon the following language of section 31:

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 periods specified, and shall be in lieu of all other compensation.

§ 31 (emphasis added).

Defendants contend this Court's interpretation of the "in lieu of" clause in section 31 in Perry v. Furniture Co., 296 N.C. 88, 249 S.E.2d 397 (1978), controls this case. The claimant in Perry suffered a work-related injury in the employment of the Hibriten Furniture Company. Medical experts agreed that he lost between twenty-five and seventy-five percent of the use of his back. Their testimony indicated that Perry was "probably unable to carry out gainful employment" and "probably disabled from any useful occupation." Perry testified he suffered pain in his back and legs and could not lift or bend without hurting. The Industrial Commission concluded that Perry sustained a fifty percent loss of the use of his back and awarded 150 weeks' compensation pursuant to section 31(23). Perry argued he was entitled to compensation for permanent total disability under section 29. This Court, quoting section 31 and emphasizing the phrase "in lieu of all other compensation," disagreed. It held that section 31 was claimant's exclusive remedy:

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 exclusively under G.S. 97-31 regardless of his ability or inability to earn wages in the same or any other employment.

Id. at 93-94, 249 S.E.2d at 401 (emphases in original).

In Fleming v. K-Mart Corp., 312 N.C. 538, 324 S.E.2d 214 (1985), this Court expressed a willingness to depart from the rule stated in Perry. The claimant in Fleming suffered a work-related back injury which caused chronic back and leg pain. The pain prevented plaintiff from remaining in any one position for an extended period of time. If he sat for long period of time, his back hurt, and he had to get up. When he stood up, his legs hurt, and he had to sit down. A deputy commissioner found as fact that plaintiff suffered a fifty percent loss of use of his back and awarded 150 weeks' compensation under section 31(23). The Full Commission concluded that plaintiff was totally and permanently disabled within the meaning of section 2(9) and entitled to compensation under section 29. The Full Commission modified the deputy commissioner's award accordingly. The Court of Appeals and this Court affirmed. We stated:

If an injured employee is permanently and totally disabled as the term is defined by N.C.G.S. 97-2(9), then he or she is entitled to receive compensation under N.C.G.S. 97-29. See West v. Bladenboro Cotton Mills, 62 N.C.App. 267, 302 S.E.2d 645 (1983); Cook v. Bladenboro Cotton Mills, 61 N.C.App. 562, 300 S.E.2d 852 (1983). See generally Note, North Carolina General Statutes Section 97-31: Must it Provide Exclusive Compensation for Workers who Suffer Scheduled Injuries?, 62 N.C.L.Rev. 1462 (1984).

Fleming v. K-Mart Corp., 312 N.C. at 547, 324 S.E.2d at 219. Thus, in Fleming we permitted a totally and permanently disabled employee...