1. Workers' Compensation--work-related injury--sufficiency of
evidence
The Industrial Commission did not err in a workers'
compensation action by finding and concluding that plaintiff had
met his initial burden of proving a work-related injury where
plaintiff testified that he suffered severe pain as a result of
bending over and picking up a drop cord; he reported this to his
supervisor and soon had to cease work, being unable even to
remove his tools from the truck; he was treated by a doctor for
three months at the recommendation of the Division of Vocational
Rehabilitation; the doctor testified that plaintiff suffered from
a herniated disc and a protruding disc and that such an injury
was consistent with plaintiff's complaints of pain; and plaintiff
testified that the pain had continued since the injury, that he
could not stand for more than forty-five minutes or sit for more
than two hours, that he was unable to perform any of his previous
physical activity, and that he had become increasingly depressed
as a result of the accident.
2. Workers' Compensation--disability--availability of suitable
jobs
Defendants in a workers' compensation action did not meet
their burden of establishing that suitable jobs were available to
a plaintiff who had shown disability from a back injury where
plaintiff testified that he had been engaged in manual labor all
his life with only an eighth-grade education, that he would like
to return to work but had not looked because he could not keep a
job as a result of his back pain, and it was then incumbent on
defendant-employer to come forward with evidence that unexplored
employment exists for plaintiff given his age, education,
physical limitations, vocational skills, and experience.
3. Workers' Compensation--depression--increase since injury--
non-expert testimony
The Industrial Commission in a workers' compensation action
had competent evidence before it in plaintiff's testimony to
support a finding that plaintiff's depression had increased.
Although it has been held that expert testimony is required to
establish the cause of an injury in certain situations, the
Commission here relied on plaintiff's testimony to support a
finding that plaintiff's depression had increased, not in support
of a causation finding.
4. Workers' Compensation--calculation of compensation--hours
worked before injury--credibility of evidence
The Industrial Commission in a workers' compensation action
correctly calculated plaintiff's compensation rate where
defendant contended that plaintiff never reached 40 hours a week,but plaintiff testified that he worked five days a week, eight
hours a day, and that he was often loaned out to another company
owned by defendant-employer in order to keep him fully employed.
The Commission found plaintiff's evidence unchallenged and more
credible.
Appeal by defendants from opinion and award entered 30 July
1999 and filed 3 August 1999 by the North Carolina Industrial
Commission. Heard in the Court of Appeals 12 October 2000.
Frederick R. Stann for plaintiff-appellee.
Morris York Williams Surles & Barringer, LLP, by C. Michelle
Sain and Kelly F. Miller, for defendants-appellants.
WALKER, Judge.
On 7 November 1996, plaintiff alleges he injured his back
while attempting to pick up a drop cord in the course of his
employment with defendant Power Circuit, Inc. Plaintiff filed a
workers' compensation claim which was denied by defendants.
After a hearing, the deputy commissioner found that plaintiff had
suffered a specific traumatic injury and awarded plaintiff
temporary total disability compensation, medical expenses and
attorney fees. Defendants appealed to the Full Commission
(Commission) which affirmed the decision of the deputy
commissioner.
The Full Commission's findings include, in pertinent part:
6. Prior to plaintiff's injury, he was in
good physical health. Plaintiff did suffer
from depression prior to the accident. This
depression had been diagnosed by plaintiff's
family physician and plaintiff had
continuously received treatment since the
diagnosis in 1985. Plaintiff was taking
Prozac, an anti-depressant, at the time of
the injury; however, plaintiff considered
himself to be dealing with his depression and
that it had stabilized and the Full
Commission concurs in this assessment.
7. On November 7, 1996, plaintiff was
scheduled to work for the defendant-employer
at a residence. Plaintiff was to installseveral receptacles and a ceiling fan
electrical box. Plaintiff was loading his
truck with ladders and wire when Kenneth
Stroupe, the owner of the business, beckoned
plaintiff to come into the shop and get some
nails. As plaintiff was getting a handful of
nails, he spotted a hundred foot extension
cord on the floor that he thought he might
need at the job site. Plaintiff bent down
and reached for the extension cord and as he
was coming up, he felt an intense pain burst
across his lower back. This constituted a
specific traumatic incident of the work
assigned and led to inability to earn wages
and is thus compensable under the Workers'
Compensation Act.
9. Plaintiff indicated to Mr. Stroupe that
he had hurt his back and he would go out on
the job to see what he could do.
10. Plaintiff's pain increased while he was
driving to the job site. At the job site,
plaintiff was unable to install the
receptacles because of his pain and attempted
to install the ceiling fan box. Plaintiff
went into the attic in order to begin the
installation only he felt so much pain that
he was unable to install the box. Plaintiff
drove back to the shop and told Mr. Stroupe
he could not work because of the pain. Mr.
Stroupe expressed anger and indicated that
plaintiff should take his tools off the
truck. Plaintiff was unable to do this, so
Mr. Stroupe removed the tools and placed them
in the trunk of plaintiff's car.
&
nbsp;. . .
14. Plaintiff contacted the Division of
Vocational Rehabilitation of North Carolina
and was accepted in the program. Plaintiff
was sent to R.S. Humble, M.D.
15. Dr. Humble treated plaintiff for a
period of three (3) months at the expense of
the Division of Vocational Rehabilitation of
North Carolina. Initially, plaintiff was
diagnosed with a lumbar strain, but
ultimately it was determined that plaintiff
had a herniated disc at L4, L5 and a
protruding disc at L5, S1. Dr. Humble
thought these discs would not benefit from
surgical intervention, but plaintiff is
entitled to seek further medical advice
and/or surgery with respect to his back
injury.
16. Dr. Humble prescribed steroid medicationand physical therapy. T
his conservative
treatment was unsuccessful and Dr. Humble
told plaintiff that there was nothing more
than [sic] he could do for him. Dr. Humble
released plaintiff not because plaintiff was
cured but because there was nothing else Dr.
Humble felt he could do for his patient.
Plaintiff has not reached MMI and continues
to have significant medical problems.
17. A Functional Capacity Evaluation was
recommended and upon the evaluation having
been taken, plaintiff was released with
restrictions in March 1997. The restrictions
and the continuing chronic pain preclude
plaintiff from employment in the only work he
is able to do for pay.
18. In the days following his injury,
plaintiff had to spend from sixteen to
eighteen hours a day lying down to relieve
his severe pain. Asked to describe his pain
level based upon a scale of one to ten where
one is a pain you could easily ignore and ten
is the most severe pain imaginable, plaintiff
stated that on the day he went to Gaston
Memorial Hospital his pain was between an
eight and one-half and a nine and one-half.
At the time of the hearing, plaintiff's daily
pain levels were about three and one-half to
four and one-half, but after any activity
whatsoever, his pain would accelerate to
between six and seven and he would have to
lie down to relieve his pain.
&
nbsp; . . .
20. Since the injury plaintiff can only
stand for 45 minutes at one time before his
pain becomes too great to tolerate.
Plaintiff can sit for about one and one-half
to two hours at a time. Plaintiff performs
no chores around the boarding house where he
lives, not even cleaning his room, as was
required. After his injury plaintiff
attempted to sweep his room one time but had
to get someone else to finish it for him.
21. Plaintiff would like to return to work.
He was happier when he was able to work and
was working. However, plaintiff has not
looked for work because he could not hold
down a job due to his chronic and
debilitating back pain.
22. Plaintiff's injury and subsequent pain
are a direct and proximate result of the
specific traumatic incident of November 7,
1996.
23. Plaintiff's pain and symptoms relatingto depression have increas
ed since the time
of his injury. Plaintiff's depression makes
it hard for him to deal with his job-caused
chronic pain and his job-caused chronic pain
exacerbates his depression. Plaintiff's job-
caused chronic pain has made it impossible
for him to be gainfully employed since
November 6, 1996.
[1]Defendants first assign as error the Commission's
finding that plaintiff met his initial burden of proving that he
is disabled and thus entitled to compensation. “The findings of
fact by the Industrial Commission are conclusive on appeal if
supported by any competent evidence.” Deese v. Champion Int'l
Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552 (2000). This Court
“does not have the right to weigh the evidence and decide the
issue on the basis of its weight. The [C]ourt's duty goes no
further than to determine whether the record contains any
evidence tending to support the finding.” Id.
In order to show eligibility for disability compensation,
the plaintiff has the initial burden of proving the existence and
extent of his disability. See Franklin v. Broyhill Furniture
Industries, 123 N.C. App. 200, 472 S.E.2d 382 (1996).
“Disability” is defined as an “incapacity . . . to earn the wages
which the employee was receiving at the time of injury in the
same or any other employment.” N.C. Gen. Stat. § 97-2(9) (1999).
A plaintiff may show such incapacity 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 butthat 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). In determining if plaintiff has met
this burden, the Commission must consider not only the
plaintiff's physical limitations, but also his testimony as to
his pain in determining the extent of incapacity to work and earn
wages such pain might cause. Matthews v. Petroleum Tank Service,
Inc., 108 N.C. App. 259, 265, 423 S.E.2d 532, 535 (1992).
In the case at bar, plaintiff testified that he suffered
severe pain as a result of his bending over and picking up the
drop cord. He immediately reported this to his supervisor and
soon thereafter had to cease work. He was unable to even remove
his tools from the truck. On the recommendation of the Division
of Vocational Rehabilitation, plaintiff was seen and treated by
Dr. R.S. Humble over the next three months. Dr. Humble testified
that plaintiff suffered from a herniated disc and a protruding
disc in his back and that such an injury was consistent with
plaintiff's complaints of pain. Furthermore, plaintiff testified
that the pain has continued since the injury, that he cannot
stand for more than forty-five minutes or sit for more than two
hours, that he is unable to perform any of his previous physical
activity and that he has become increasingly depressed as a
result of the accident. This testimony provides competent
evidence to support the Commission's findings and conclusions
that plaintiff met his initial burden of proving a work-related
injury. [2]Once the employee has shown a disability, the burden
then shifts to the employer to “produce evidence that suitable
jobs are available for the employee and that the employee is
capable of getting one, taking the employee's physical and
vocational limitations into account.” Franklin at 206, 472
S.E.2d at 386. “A job is suitable if the employee is capable of
performing the job, given her age, education, physical
limitations, vocational skills, and experience.” Id. “An
employee is capable of getting a job if there is a reasonable
likelihood that she would be hired if she diligently sought the
job.” Id.
Plaintiff testified that he has been engaged in manual labor
all his life with only an eighth grade education. He testified
that he would like to return to work, but that he has not looked
for work because he could not keep a job as a result of his back
pain. It was then incumbent on the defendant-employer to come
forward with evidence that employment opportunities exist for
plaintiff which he has not explored given his “age, education,
physical limitations, vocational skills, and experience.” Thus,
we find defendants failed to meet their burden of establishing
that “suitable jobs are available to plaintiff.”
[3]Defendants next contend that there is no competent
evidence to support the Commission's determination that
plaintiff's depression increased after the accident. Defendants
cite Click v. Freight Carriers, 300 N.C. 164, 265 S.E.2d 389
(1980), in support of the proposition that “only an expert can
give competent opinion evidence as to the cause of the injury.”
Defendants argue that because the Commission relied only on the
plaintiff's testimony that his depression worsened after hisinjury, there is no competent evidence to support this finding.
In Click, our Supreme Court held that expert testimony is
required to establish the cause of an injury in certain
situations. In the case at bar, the Commission found that
plaintiff's depression had “increased since the time of the
accident” and that “[p]laintiff's depression makes it hard for
him to deal with his job-caused chronic pain and his job-caused
chronic pain exacerbates his depression.” Thus, the Commission
properly relied on plaintiff's testimony to support a finding
that his depression has increased, not in support of a finding of
causation.
[4]The defendants' final assignment of error is that the
Commission incorrectly calculated plaintiff's compensation rate
based on the hours he worked prior to the injury. The Commission
found that plaintiff worked a 40 hour work week; however,
defendants assert that the Form 22 showed that plaintiff only
worked 14 to 15 hours per week initially with his hours
increasing over time, but never reaching 40 hours per week.
Plaintiff testified that he worked five days a week, eight hours
a day, and that he was often “loaned out” to another company
owned by the defendant-employer in order to keep him fully
employed. The Commission found this evidence was “unchallenged”
and more credible. The opinion and award of the Commission is
Affirmed.
Judges McGEE and HORTON concur.
*** Converted from WordPerfect ***