On an appeal from an opinion and award of the Industrial
Commission, the standard of review by this Court “is limited to a
determination of (1) whether the Commission's findings of fact aresupported by any competent evidence in the record; and (2) whether
the Commission's findings justify its conclusions of law.” Goff v.
Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d
602, 604 (2000). The Industrial Commission's findings of fact are
binding on appeal if supported by any competent evidence, even if
the record also contains evidence that would support findings to
the contrary. Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411
(1998). Thus, “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.” Kennedy v. Duke
Univ. Med. Center, 101 N.C. App. 24, 30, 398 S.E.2d 677, 680
(1990). The Industrial Commission's conclusions of law, however,
are reviewable de novo. Lewis v. Craven Regional Medical Center,
122 N.C. App. 143, 468 S.E.2d 269 (1996).
I.
Defendants argue on appeal that the Industrial Commission
erred by awarding plaintiff benefits for temporary total
disability, and also by concluding that plaintiff's disability (if
any) after July 3, 1998, was caused by her injury on 28 May 1997.
Under N.C.G.S. § 97-2(9) (2001), disability is defined as the
“incapacity because of injury to earn the wages which the employee
was receiving at the time of injury in the same or any other
employment.” “[I]n order to support a conclusion of disability,the Commission must find: (1) that plaintiff was incapable after
his injury of earning the same wages he had earned before his
injury in the same employment, (2) that plaintiff was incapable
after his injury of earning the same wages he had earned before his
injury in any other employment, and (3) that this individual's
incapacity to earn was caused by plaintiff's injury.”
Hilliard v.
Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).
“[I]n worker's compensation cases the initial burden has
always been on the plaintiff to produce competent evidence of all
three
Hilliard factors before the burden shifts to defendant to
rebut plaintiff's evidence.”
Coppley v. PPG Indus., Inc., (
Coppley
I), 133 N.C. App. 631, 635, 516 S.E.2d 184, 187 (1999)). There are
several alternative ways a plaintiff may establish her inability to
earn the same wages in any employment:
The employee may meet this burden 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) (citing
Peoples v. Cone Mills Corp., 316
N.C. 426, 443-444, 342 S.E.2d 798, 809 (1986), and
Tyndall v.
Walter Kidde Co., 102 N.C. App. 726, 730, 403 S.E.2d 548, 550,
disc. review denied, 329 N.C. 505, 407 S.E.2d 553 (1991)).
In the
present case, plaintiff did not present evidence of the kind
required under the second, third, or fourth avenues discussed in
Russell. Therefore, plaintiff was required to present
“medical
evidence that he is physically or mentally, as a consequence of the
work related injury, incapable of work in any employment.”
Russell, 108 N.C. App. at 765, 425 S.E.2d at 457.
“Furthermore, to ensure effective appellate review, the
Commission's findings must sufficiently reflect that plaintiff
produced evidence to prove all three
Hilliard factors.”
Coppley,
133 N.C. App. at 635, 516 S.E.2d at 187. We review, therefore, to
determine whether the Industrial Commission fulfilled its duty to
make adequate findings of fact, and whether these are supported by
competent evidence. In the case
sub judice, the Industrial
Commission's findings of fact include, in relevant part, the
following:
. . . .
2. . . . In late July 1996 plaintiff sought
medical treatment for severe neck pain[.] . .
. Plaintiff therefore underwent fusion surgery. . . and was out of work approximately three
months as a result. Plaintiff was released
and returned to work . . . on or about October
17, 1996. Dr. Admundson, a neurosurgeon,
performed the surgery and treated plaintiff
for this injury.
3. After the fusion surgery and her return to
work, plaintiff continued under Dr.
Admundson's care for several months[.] . . .
On April 17, 1997 . . . Dr. Admundson released
plaintiff from his care, and noted that there
was a very solid fusion and no instability at
the surgical sites.
. . . .
5. On May 28, 1997, while in the course and
scope of her employment with defendant-
employer plaintiff was struck by a tow motor
[forklift.] As a result . . . plaintiff
suffered numerous abrasions and bruises, [and]
experienced immediate pain[.] . . .
6. Plaintiff sought treatment that same day .
. . [and] reported that her neck was
“feel[ing] funny.” . . . In July 1997
plaintiff [went to] her family physician, Dr.
Kruger, an internist, with complaints of neck
pain. Plaintiff [saw] Dr. Kruger for several
months . . . with Dr. Kruger increasing the
strength of [pain] medication . . . as
plaintiff's complaints of pain intensified.
7. Plaintiff's complaints continued to
increase . . . [and] Dr. Kruger ordered a
repeat MRI in June 1998 . . . [and] referred
plaintiff to Dr. Notricia at the Pain
Management Clinic . . . [where] [p]laintiff
underwent several epidural steroid injections.
. . .
8. On June 30, 1998, Dr. Kruger assigned work
restrictions of light duty and indicated that
plaintiff was unable to lift greater than ten
pounds, and was not to bend, stoop, or be on
her feet. Because defendant-employer did not
have suitable employment within these
restrictions, plaintiff went out of work
altogether. . . .
9. Plaintiff [went] to Dr. Admundson onSeptember 21, 1998 with neck pain. . . .
10. A tomogram . . . confirmed that . . . the
fusion . . . was not fully solid. . . . On
November 13, 1998 a repeat tomogram again
showed an incomplete fusion . . . [and] Dr.
Admundson recommended a surgical approach.
11. On February 17, 1999 Dr. Admundson
performed a refusion. . . . While in surgery,
Dr. Admundson discovered a very clear fracture
line . . . confirming his initial suspicion. .
. . Based upon plaintiff's history that she
successfully returned to work after her
initial surgery, was later hit by a tow motor
at work . . . and her symptoms worsened after
this incident, Dr. Admundson was of the
opinion, and the Full Commission so finds,
that the fracture . . . was caused by
plaintiff being hit by the tow motor. . . .
[T]his accident on May 28, 1997 materially
aggravated plaintiff's preexisting condition
and caused the condition to become disabling.
. . . .
13. Plaintiff underwent . . . physical therapy
and psychological counseling . . . through
mid-August, 1999. . . . As a result of the
evaluations and treatment . . . it was
determined that plaintiff was unable to return
to work in her former employment as a hose
assembler. Plaintiff was given sedentary work
restrictions with no lifting greater than ten
pounds, no significant overhead work, and with
frequent positional changes as well as
alternating the use of her arms. Upon
completion of this program, plaintiff was
released to the care of her primary treating
physician for ongoing treatment and
medication.
14. Plaintiff last worked for defendant-
employer on July 3, 1998. Defendant-employer,
through its own admission, does not have a
position that is suitable for plaintiff's
physical capacity. As of the date of the
hearing . . . plaintiff had made no
independent efforts to locate suitable
employment; neither have defendants assistedplaintiff in locating suitable employment
through vocational rehabilitation.
Additionally, plaintiff was not at MMI as of
the date of the hearing . . . and was unable
because of her compensable injury to earn
wages.
. . . .
16. As a result of the compensable material
aggravation of her preexisting condition,
plaintiff has been totally disabled since July
3, 1998. However, given her age, education,
and employment background, and the fact that
she has been released to work within
restrictions . . . the Full Commission cannot
find and hold by the greater weight of the
evidence at this time that plaintiff is
permanently totally disabled. Plaintiff is
capable of working in some capacity; however,
there is no evidence in th[e] record showing
that there are jobs available in the
competitive job market that are suitable for
plaintiff's physical capacity that she is
capable of obtaining and performing.
17. Because Dr. Admundson was the physician
who operated on plaintiff twice . . . and
because he actually treated plaintiff while
Dr. Timothy B. Garner . . . merely reviewed
the medical records . . . Dr. Admundson's
evidence is given greater weight.
On the basis of its findings of fact, the Industrial Commission
made conclusions of law including, in pertinent part the following:
1. On May 28, 1997 plaintiff sustained a
compensable injury by accident arising out of
and in the course of her employment . . . when
a tow motor [forklift] hit her. N.C.G.S. §
97-2(6). This injury by accident materially
aggravated her underlying, preexisting
condition by fracturing the surgically-fused
disc, and contributed in some reasonable
degree to plaintiff's ongoing disability. . .
. 2. As a result of her compensable injury by
accident that materially aggravated an
underlying, preexisting condition, plaintiff
has been unable to earn wages since July 3,
1998, and is entitled to benefits as a result.
N.C.G.S. § 97-29.
. . . .
5. Plaintiff was totally unable to earn any
wages for periods of time as a result of her
compensable injury and, although some of her
physicians say she can return to work with
restrictions, there is no evidence in this
record of what her earning capability might
be. Additionally, she has not reached the end
of the healing period. Accordingly, plaintiff
is entitled to continuing disability until
further order of the Industrial Commission.
Defendants have argued that the Industrial Commission erred by
finding that plaintiff's disability after July 3, 1998 was caused
by the accident in May, 1997. We disagree.
“It is the duty of the Commission, not this Court, to weigh
the evidence and to assess its credibility, and when conflicting
evidence is presented, the Commission's finding of causal
connection between the accident and the disability is conclusive.”
Pomeroy v. Tanner Masonry, 151 N.C. App. 171, 181, 565 S.E.2d 209,
216 (2002) (citing
Anderson v. Lincoln Construction Co., 265 N.C.
431, 434, 144 S.E.2d 272, 275 (1965)). Further, “[i]t is
well-established that even if decedent's injury at work aggravated
a pre-existing condition, the resulting disability is nonetheless
compensable.”
Skillin v. Magna Corp., 152 N.C. App. 41, 50, 566
S.E.2d 717, 723 (2002). In the present case, the Commission found that plaintiff had
suffered a compensable injury when she was struck by a forklift,
which injury caused her fused vertebrae to fracture. The
Commission concluded that the
accident
“materially aggravated
plaintiff's preexisting condition and caused the condition to
become disabling.” We conclude these findings were amply supported
by competent record evidence. We further conclude that the
Industrial Commission's findings of causation support its
conclusion of law that plaintiff suffered a compensable injury,
which caused her disability. Accordingly, these findings and
conclusion are affirmed, and this assignment of error is overruled.
We next consider the Industrial Commission's findings and
conclusions regarding the extent of plaintiff's disability. The
Commission found that even after surgery and rehabilitation,
plaintiff was subject to certain work restrictions, and that
defendant did not have any positions meeting these restrictions.
We conclude that the Industrial Commission's findings sufficiently
support the conclusion that plaintiff was incapable of earning
wages in the
same employment, notwithstanding the Industrial
Commission's failure to make an express finding to that effect.
See Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 187, 345 S.E.2d
374, 379 (1986) (holding Commission's finding that claimant was
“unable to obtain employment in the cotton textile industry due tohis inability to pass the breathing test . . . amounted to a
finding that the plaintiff was incapable of earning the same wages
he had earned before his injury in the same employment” despite
fact that “neither the deputy commissioner nor the Commission
specifically so stated”);
Skillin, 152 N.C. App. at 51, 566 S.E.2d
at 724 (evidence that employer had no positions available meeting
claimant's work restrictions sufficient to support conclusion that
plaintiff was disabled). The Industrial Commission's conclusion
that plaintiff was totally disabled is affirmed as regards her
inability to earn her pre-injury wages in the same employment.
Finally, we consider the Industrial Commission's findings and
conclusions as they pertain to plaintiff's ability to earn the same
wages
in any employment. We conclude that the Industrial
Commission's findings of fact on this issue are incomplete and
inconsistent.
The Industrial Commission concluded that “plaintiff has been
unable to earn wages since July 3, 1998[,]” and was therefore
entitled to benefits for temporary total disability, pursuant to
G.S. § 97-29. The Industrial Commission's findings of fact support
its award of benefits for temporary total disability for the period
3 July 1998, until 12 August 1999, when she completed the
rehabilitation from her second surgery and was released to work
within certain restrictions. However, the Commission failed tomake a finding that plaintiff remained unable to earn the same
wages in any employment; moreover, its findings pertaining to this
issue are contradictory. In finding of fact number 14, the
Commission states that plaintiff “was unable because of her
compensable injury to earn wages[,]” and, in finding of fact number
16, that “plaintiff has been totally disabled since July 3, 1998.”
However, the Commission also states in finding of fact number 16
that plaintiff “has been released to work within restrictions” and
“is capable of working in some capacity[.]”
“[A]lthough the Commission 'is not required . . . to find
facts as to all credible evidence . . . the Commission must find
those facts which are necessary to support its conclusions of
law[.]'”
Pomeroy, 151 N.C. App. at 178, 565 S.E.2d at 214 (quoting
Peagler v. Tyson Foods, Inc., 138 N.C. App. 593, 602, 532 S.E.2d
207, 213 (2000)). Thus, the Industrial Commission is “required to
make specific findings with respect to crucial facts upon which the
question of plaintiff's right to compensation depends.”
Gaines v.
Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859
(1977) (citations omitted). Further, if the findings of fact “are
insufficient to enable the court to determine the rights of the
parties upon the matters in controversy, the proceeding must be
remanded to the commission for proper findings of fact.”
Id. See
Thomason v. Cab Co., 235 N.C. 602, 605-6, 70 S.E.2d 706, 709
(1952):
The findings of fact of the Industrial
Commission . . . must be sufficiently positive
and specific to enable the court on appeal to
determine whether they are supported by the
evidence and whether the law has been properly
applied to them. . . . [T]he court cannot
decide whether the conclusions of law and the
decision of the Industrial Commission rightly
recognize and effectively enforce the rights
of the parties upon the matters in controversy
if the Industrial Commission fails to make
specific findings as to each material fact
upon which those rights depend.
“If the findings of the Commission are insufficient to
determine the rights of the parties, the appellate court may remand
to the Industrial Commission for additional findings.”
Lanning v.
Fieldcrest-Cannon, Inc., 352 N.C. 98, 106, 530 S.E.2d 54, 60
(2000).
See also Harrell v. Harriet & Henderson Yarns, 314 N.C.
566, 575, 336 S.E.2d 47, 52 (1985) (where Commission makes
“inconsistent fact findings, . . . the proper course is to remand
the case to the Commission”);
Neal v. Leslie Fay, Inc., 78 N.C.
App. 117, 119, 336 S.E.2d 628, 630 (1985) (“[t]hough this appeal
raises [certain] questions they cannot be determined because the
Commission's findings of fact and conclusions of law are
inconsistent and contradictory, some of which support and some of
which undermine the decision made”). We conclude that the Industrial Commission's findings of fact
support its conclusion that plaintiff suffered a compensable injury
resulting in temporary total disability from 3 July 1998, until at
least 12 August 1999, when she was released to return to work
within restrictions. However, the Commission's findings of fact
are incomplete and inconsistent with regards to the period after 12
August 1999. Accordingly, we affirm the Industrial Commission's
award of benefits for temporary total disability from 3 July 1998,
until 12 August 1999, and reverse and remand for determination of
plaintiff's eligibility after that date.
Affirmed in part, reversed and remanded in part.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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