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1. Workers' Compensation--disability payments--pre-existing injury
The Industrial Commission did not err in a workers' compensation case by concluding that plaintiff employee was entitled to disability payments for an upper back injury suffered on 9 December 1999 but not for his pre-existing lower back injury, because: (1) although plaintiff continued to receive treatment for his lower back injury along with the new upper back injury, these injuries were distinct and there was no aggravation of the lower back injury; and (2) any treatment received for the lower back was simply a continuation of the prior treatment.
2. Workers' Compensation--temporary total disability--credibility
The Industrial Commission did not err in a workers' compensation case by awarding plaintiff truck driver $136.17 per week in temporary total disability for the time period between 14 June 2000 and 28 August 2000, because: (1) the Commission found that plaintiff's explanation for not seeking medical treatment earlier than 14 June 2000 was not credible, and there was no other evidence that plaintiff was unable to work between December 1999 and June 2000; (2) the Commission found that plaintiff's explanation for not taking an offered switch-out position was not credible; (3) N.C.G.S. § 97-29 provides that an employee is entitled to sixty-six and two-thirds percent of his average weekly wages, which was the exact amount that plaintiff was awarded; and (4) contrary to plaintiff's assertion that he was entitled to the same disability compensation rate that he was awarded for his lower back injury, that injury was a separate and unrelated occurrence.
Franklin Smith for plaintiff-appellant.
Teague, Rotenstreich & Stanaland, L.L.P., by Elizabeth M. Stanaland and Paul A. Daniels, for defendant-appellees Murrow's Transfer and The Harleysville Insurance Companies.
Young Moore and Henderson, P.A., by J. D. Prather and Jennifer Terry Gottsegen, for defendant-appellee Murrow's Transfer in its self-insured capacity.
Larry France (plaintiff) appeals from an opinion and award of the Full Commission of the North Carolina Industrial Commission (the Commission) filed 18 December 2002. We conclude that the Commission's findings of fact are supported by competent evidence and in turn those findings support the Commission's conclusions of law. Accordingly, we affirm the opinion and award of the Commission.
The evidence before the Commission tends to show that on 17 May 1994, while working for Murrow's Transfer (defendant) as a truck driver, plaintiff suffered an admittedly compensable injury to his lower back when he slipped as he was unloading furniture. As a result of this injury, plaintiff received benefits pursuant to a Form 21 settlement approved by the Commission. Plaintiff primarily received treatment for this injury from Dr. O. Dell Curling (Dr. Curling). Plaintiff continued receiving treatment for his lower back injury through October 1999 and received benefits for that injury through 15 February 2000. Plaintiff returned to work, performing some of his hauling responsibilities.
On 14 February 2000, plaintiff completed a Form 18 notifying defendant that he had been injured on 9 December 1999. Plaintiff had allegedly been attempting to unload a desk weighing close to 300 pounds with only the aid of an eighty-year old woman. The store to which plaintiff was delivering the desk had apparently hired someone to assist plaintiff in unloading the desk, but no one was there on the two occasions plaintiff tried to make the delivery. After the two unsuccessful delivery attempts, plaintiff's supervisor told plaintiff not to bring the desk backagain. It was this ultimatum which resulted in plaintiff's injury. As plaintiff removed the desk from the truck, the desk began to fall. In an effort to prevent the desk from breaking apart on impact with the ground, plaintiff attempted to hold it up and in the process strained his shoulder, neck, and upper back.
Plaintiff did not receive medical treatment for this new injury until 14 June 2000, but testified he had attempted to contact Dr. Curling approximately fifty times during the intervening six-month period. Although plaintiff had not worked after the 9 December 1999 incident, there was no evidence other than his own testimony that he was unable to work during this time. After continuing to receive treatment for both upper and lower back injuries, plaintiff was allowed to return to work with restrictions in August 2000. Because of the restrictions placed upon him, he was no longer permitted to do truck hauling. Defendant did, however, offer to allow plaintiff to perform switch-out work on 28 August 2000. Plaintiff did not accept this position.
In its opinion and award, the Commission found that the 9 December 1999 incident, in which plaintiff strained his upper back and neck was a new incident and injury, distinct from his prior lower back injury. The Commission also found that plaintiff's reasons for not seeking medical treatment for this new injury were not credible. Although the Commission awarded temporary total disability payments to plaintiff as a result of the upper back injury suffered on 9 December 1999, it did so only for the period from 14 June 2000 to 28 August 2000. This limitation was based on the lack of evidence that plaintiff was disabled between the 9December incident and his 14 June 2000 visit to Dr. Curling, and plaintiff's refusal to accept the switch-out position offered to him on 28 August 2000. The Commission also declined to award additional disability for plaintiff's lower back injury finding there was no evidence that the 9 December 1999 incident had caused any aggravation to this pre-existing lower back injury from the 1994 incident. Plaintiff was awarded temporary total disability in the amount of $136.17 per week from 14 June 2000 until 28 August 2000.
The issues on appeal are whether (I) plaintiff is entitled to additional disability compensation for his lower back injury as a result of the 9 December 1999 incident, and (II) plaintiff's award of temporary total disability was properly calculated.
In reviewing an order and award of the Industrial Commission in a case involving workmen's compensation, [an appellate court] is limited to a determination of (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are supported by the findings. Barham v. Food World, 300 N.C. 329, 331, 266 S.E.2d 676, 678 (1980).
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