Appeal by plaintiff from Opinion and Award entered 25 January
1999 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 11 January 2000.
Robert J. Willis for plaintiff-appellant.
Lewis & Roberts, P.L.L.C., by Timothy S. Riordan and Brian D.
Lake, for defendant-appellees.
EDMUNDS, Judge.
Plaintiff appeals the finding of the Industrial Commission
that, although plaintiff was temporarily totally disabled, she was
not permanently totally disabled. We affirm.
In 1990, plaintiff Mary L. Brice (Brice), then fifty years
old, began working for defendant-employer Sheraton Inn (Sheraton).
Her duties required her to perform repetitive tasks with her hands,
including retrieving and sorting soiled towels and linens; loadingcommercial-size washers and dryers; ironing, folding, and stacking
hotel laundry; transporting the pressed and folded laundry to
another room; cleaning and straightening the work area; and
dispensing clean towels, linens, and soap to room attendants.
Although she was promoted to laundry supervisor, she continued to
perform her regular duties while overseeing the work of other
employees assigned to the laundry area.
On 11 January 1995, plaintiff felt a “pop” in her right wrist
as she was removing wet linen from a washing machine at work. She
reported the incident to her supervisor, but continued to work
despite growing pain and swelling in her right hand. Because of
the recurrent pain, plaintiff relied increasingly on her left hand.
As a result, plaintiff began experiencing pain in her left wrist
and thumb. On 3 March 1995, plaintiff sought medical treatment for
her injury. Physical therapy was recommended. Plaintiff resigned
from her job with Sheraton on 24 April 1995 for reasons unrelated
to the condition of her hands.
Plaintiff continued to experience pain and swelling in her
hands despite physical therapy. Thereafter, she was diagnosed with
chronic bilateral de Quervain tenosynovitis and left trigger thumb,
conditions resulting from the repetitive nature of her work while
employed with Sheraton. She filed a Form 18 “Notice of Accident to
Employer” on 3 May 1995, but her claim was denied. An orthopedist,Dr. Wallace Andrew, examined plaintiff and later performed surgery
on her left hand. Dr. Andrew released plaintiff to return to work
without restriction as of 28 August 1995.
Plaintiff's case initially was heard before a deputy
commissioner on 5 December 1995. In an opinion and award filed 4
February 1997, the deputy commissioner found that plaintiff had
suffered a compensable injury and was entitled to receive temporarytotal disability at the weekly rate of $177.43 from 9 May 1995
until further order from the full Commission. Both parties
appealed the decision of the deputy commissioner.
On 29 July 1997, the case was reviewed by the full Commission,
which filed an opinion and award on 25 August 1997. The Commission
concluded that plaintiff had suffered a compensable injury and was
entitled to receive temporary total disability at the weekly rate
of $182.21 from 9 May 1995 until 28 August 1995, the date on which
Dr. Andrew released plaintiff to work without restriction.
Additionally, the Commission found plaintiff to be ten percent
permanently partially disabled in her left hand and seven percent
in her right. The Commission concluded that plaintiff failed to
show that she was permanently and totally disabled.
Plaintiff appealed the full Commission's opinion and award to
this Court. In her appeal, she contended the Commission erred by
rejecting the deputy commissioner's determination of plaintiff's
credibility, by arbitrarily according greater weight to the
testimony of one expert over that of other experts, and by
incorrectly shifting the burden of proof to plaintiff. This Court,
relying on Sanders v. Broyhill Furniture Industries, 124 N.C. App.
637, 478 S.E.2d 223 (1996), vacated the opinion and award of the
Commission and remanded “for entry of a new opinion and award
wherein the Commission demonstrates it has applied the rule
according deference to the deputy commissioner's determinations of
credibility.” Brice v. Sheraton, Inc., 131 N.C. App. 335, 511
S.E.2d 47 (1998) (unpublished table decision). Additionally, weheld that the Commission's “solitary finding based upon t
he
deposition testimony of Dr. Andrew [did not] justif[y] its
conclusion of law that 'plaintiff has failed to show by the greater
weight of the credible evidence . . . that she is totally and
permanently disabled . . . .'” Id. (omissions in original).
On remand, the Commission again found plaintiff totally
disabled from 9 May through 28 August 1995, but not thereafter.
The Commission additionally found that greater weight should be
given to the testimony of Dr. Andrew regarding plaintiff's ability
to return to work. Plaintiff again appeals.
I.
[1]Plaintiff first contends the Commission erred in finding
that she was not totally and permanently disabled after 28 August
1995. Because the Commission's finding is based upon the testimony
of Dr. Andrew, plaintiff's contention is that the Commission failed
to follow our directive, pursuant to
Sanders, 124 N.C. App. 637,
478 S.E.2d 223, to give deference to the credibility findings of
the deputy commissioner, who found plaintiff credible. Although
plaintiff concedes that
Sanders was overruled by our Supreme
Court's decision in
Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d
411 (1998),
reh'g denied, 350 N.C. 108, --- S.E.2d --- (1999), she
argues that she and others similarly situated have “prejudicially
relied upon the validity of
Sanders” and thus
Adams should not be
applied retroactively to the case at bar.
Although this precise issue has not yet been presented to our
courts, we consistently have applied
Adams to cases decided by theCommission prior to the
Adams ruling.
See, e.g.,
Hauser v.
Advanced Plastiform, Inc., 133 N.C. App. 378, 514 S.E.2d 545 (1999)
(applying
Adams to 1998 opinion and award);
Foster v. Carolina
Marble and Tile Co., 132 N.C. App. 505, 513 S.E.2d 75 (1999)
(finding plaintiff's reliance on
Sanders misplaced due to Supreme
Court's decision in
Adams),
disc. review denied, 350 N.C. 830, ---
S.E.2d --- (1999);
Pittman v. International Paper Co., 132 N.C.
App. 151, 510 S.E.2d 705 (same),
aff'd per curiam, 351 N.C. 42, 519
S.E.2d 524 (1999). More important, implicit in the Supreme Court's
orders to this Court to reconsider cases in light of
Adams is the
directive that
Adams apply retroactively.
See Deese v. Champion
Int'l Corp.,
133 N.C. App. 278, 515 S.E.2d 239 (on remand from
Supreme Court for reconsideration in light of
Adams),
disc. review
allowed, 350 N.C. 828, --- S.E.2d --- (1999);
Timmons v. N.C. Dep't
of Transp., 132 N.C. App. 377, 511 S.E.2d 659 (same),
rev'd on
other grounds, 351 N.C. 177, 522 S.E.2d 62 (1999);
see also
Dunleavy v. Yates Construction Co., 106 N.C. App. 146, 416 S.E.2d
193 (1992). Finally, retroactive application of
Adams is
consistent with the long-settled principle that “a decision of a
court of supreme jurisdiction overruling a former decision is
retrospective in its operation.”
Mason v. Cotton Co., 148 N.C.
492, 510, 62 S.E. 625, 632 (1908). Therefore, we hold that
Adams
is to be applied retroactively to cases remanded by this Court to
the Industrial Commission.
Retroactive application of
Adams resolves the issue presented
by plaintiff.
Adams stated the function of the IndustrialCommission and of this Court in considering and reviewing workers'
compensation claims:
Under our Workers' Compensation Act, “the
Commission is the fact finding body.” “The
Commission is the sole judge of the
credibility of the witnesses and the weight to
be given their testimony.”
Whether the full Commission conducts a
hearing or reviews a cold record, N.C.G.S.
§ 97-85 places the ultimate fact-finding
function with the Commission--not the hearing
officer. It is the Commission that ultimately
determines credibility, whether from a cold
record or from live testimony. Consequently,
in reversing the deputy commissioner's
credibility findings, the full Commission is
not required to demonstrate, as
Sanders
states, “that sufficient consideration was
paid to the fact that credibility may be best
judged by a first-hand observer of the witness
when that observation was the only one.” . . .
. . . .
“The findings of fact by the Industrial
Commission are conclusive on appeal if
supported by any competent evidence.” Thus,
on appeal, this Court “does not have the right
to weigh the evidence and decide the issue on
the basis of its weight. The court's duty
goes no further than to determine whether the
record contains any evidence tending to
support the finding.”
Adams, 349 N.C. at 680-81, 509 S.E.2d at 413-14 (internal citations
omitted).
On remand, the Commission reviewed the evidence and concluded
that Dr. Andrew's testimony was the most credible. Paragraph 12 of
the Commission's fact findings states:
The Full Commission reviewed and
considered the testimony of Dr. Leonard
Nelson, Dr. Andrew Jones, and Dr. Wallace
Andrew. The Full Commission gives greater
weight to the testimony of Dr. Andrew andfinds that plaintiff was released and able to
return to work with no restrictions on 28
August 1995. Plaintiff was unable to earn
wages in the same employment or in any other
employment from 9 May 1995 through 28 August
1995. To the extent that this finding
contradicts plaintiff's testimony, that
testimony is found to be not credible.
The record is replete with competent evidence to support the
Commission's finding. This assignment of error is overruled.
II.
[2]Plaintiff next contends the Commission erred in placing on
plaintiff the burden of proving ongoing disability.
In worker's compensation cases, plaintiff has
the initial burden of proving that he suffers
from a disability as a result of a work-
related injury. “Disability” is a technical
term, meaning that because of a workplace
injury the employee suffers from an
“incapacity . . . to earn the wages which the
employee was receiving at the time of the
injury in the same or any other employment.”
Coppley v. PPG Industries, Inc., 133 N.C. App. 631, 634, 516 S.E.2d
184, 186 (1999) (internal citations omitted) (omission in
original). A plaintiff may meet his or her burden of establishing
disability 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 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.
Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993) (internal citations omitted). Once a
plaintiff establishes his or her disability, a presumption arises
that the disability continues until the employee returns to work at
wages equal to those he or she was receiving at the time of injury.
See Snead v. Carolina Pre-Cast Concrete, Inc., 129 N.C. App. 331,
499 S.E.2d 470,
cert. denied, 348 N.C. 501, 510 S.E.2d 656 (1998).
At that point, “the burden [] shifts to the employer to produce
evidence that suitable jobs are available for the employee and that
the employee is capable of obtaining a job at pre-injury wages.”
Coppley, --- N.C. App. at ---, 516 S.E.2d at 187.
In the case at bar, the Commission reviewed the evidence
presented and found that plaintiff was temporarily and totally
disabled from 5 May to 28 August 1995. The Commission further held
that plaintiff had failed to establish that she suffered
permanent
total disability after 28 August 1995, the date she was released to
work without restriction by her orthopedist. Plaintiff argues that
because the Commission found her to be temporarily totally
disabled, the Commission erred by requiring that she bear the
additional burden of establishing her permanent total disability.
However, we previously have held that it is the plaintiff's burden
to establish both temporary total disability and permanent
disability.
See Franklin v. Broyhill Furniture Industries, 123
N.C. App. 200, 472 S.E.2d 382 (1996). In the case at bar,
plaintiff met her burden of proving temporary total disability.
However, the Commission also properly placed the initial burden ofproof on plaintiff to prove that she was permanently and totally
disabled after the date she was released to work without
restriction. When plaintiff failed to meet that burden, the
inquiry ended; no burden passed to defendant to refute a claim of
permanent and total disability. There was competent evidence to
support the Commission's conclusion. This assignment of error is
overruled.
Affirmed.
Judges GREENE and LEWIS concur.
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