Appeal by plaintiff from an opinion and award entered 25
September 2003 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 19 October 2004.
Cox, Gage and Sasser, by Charles McB. Sasser, for plaintiff-
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Paul C.
Lawrence and Adam E. Whitten, for defendant-appellees.
The Estate of Johnny Anderson(plaintiff) appeals an Opinion
and Award of the Full Commission of the North Carolina Industrial
Commission filed 25 September 2003, denying temporary and total
disability benefits. Plaintiff contends the Commission erred in
placing the burden of proof of disability on plaintiff after
reversing the deputy commissioner's Order and in concluding therewas no disability after plaintiff's termination. As we find no
error in the Commission's order, we affirm.
The evidence before the Commission tends to show that
plaintiff was employed by Dana Corporation (defendant) and
injured his back while on the job on 3 October 1998. Plaintiff
reported to Pro-Med medical offices at defendant's direction on 5
October 1998 for evaluation of back pain and a drug test.
Plaintiff tested positive for cocaine, but denied using illicit
substances to defendant.
Plaintiff was evaluated for his back injury on 7 October 1998,
and written out of work for two weeks. He was reevaluated in late
October and given an MRI for further diagnosis. Defendant accepted
liability for plaintiff's 3 October injury and filed a North
Carolina Industrial Commission Form 60 on 17 November 1998.
Plaintiff's medical treatment was transferred to Dr. David Dupuy
(Dr. DuPuy), and plaintiff was released for work with some
limitations on 10 December 1998. Defendant had no work available
within the medical restrictions. Plaintiff returned for his final
evaluation on 29 December 1998 and was released for full duty work
with a three percent (3%) permanent partial disability.
Defendant instructed plaintiff to return to work on 5 January
1999, rather than 30 December 1998. When plaintiff reported to
work, he was immediately asked to meet with his supervisor, where
he was terminated for failing the drug test on 5 October 1998.
Plaintiff was examined by Dr. Ade Akande (Dr. Akande) on 23
February 1999. Dr. Akande recommended treatments for plaintiff'sback pain, but did not issue any work restrictions. Plaintiff did
not complete any treatments. Plaintiff was also reexamined on 27
May 1999 by Dr. Alfred Rhyne, III (Dr. Rhyne), who had seen
plaintiff in October after the original injury. Dr. Rhyne also
prescribed pain medication for plaintiff's back pain, but did not
restrict plaintiff's work capacity.
Plaintiff filed a Form 33 with the Industrial Commission on 2
June 2000 and a hearing was held on 18 September 2001. The deputy
commissioner found that plaintiff was terminated for misconduct
unrelated to his compensable injury and had therefore
constructively refused employment and was not entitled to
additional compensation. Plaintiff appealed this ruling to the
On 25 September 2003, the Full Commission entered an Opinion
and Award reversing in part and affirming in part the Opinion and
Award of the deputy commissioner. The Commission held that
defendant failed to show plaintiff was discharged for misconduct
and therefore entitled to total disability benefits through the day
he returned to work and to partial disability benefits for nine
weeks for the three percent disability rating to his back. The
Commission found, however, that plaintiff failed to prove he was
incapable of earning his pre-injury wages after the date of
termination and did not award temporary total disability benefits
after 5 January 1999. Plaintiff died from causes unrelated to his
injury on 27 December 2001 and plaintiff's estate appeals from this
order. Plaintiff contends that the Industrial Commission erred as a
matter of law in: (1) shifting the burden to plaintiff to prove
disability after finding plaintiff had not constructively refused
employment, or in the alternative, in concluding plaintiff was not
disabled when terminated, and (2) failing to award plaintiff total
and temporary disability benefits. The standard of review for
decisions of the Industrial Commission is well established. In
reviewing an opinion and award from the Industrial Commission, the
appellate courts are bound by the Commission's findings of fact
when supported by any competent evidence; but the Commissions's
legal conclusions are fully reviewable. Lanning v.
Fieldcrest-Cannon, Inc., 352 N.C. 98, 106, 530 S.E.2d 54, 60
Plaintiff first contends the Industrial Commission erred as a
matter of law in finding the burden of proof shifted to plaintiff
to prove his disability after concluding defendant improperly
terminated plaintiff's benefits. We disagree.
The Full Commission reversed the deputy commissioner's finding
and determined that plaintiff had not constructively refused
employment. Defendant does not cross-assign error to this
conclusion and we therefore do not review this issue. See
App. P. 10(a); White v. N.C. Dept. of E.H.N.R.
, 117 N.C. App. 545,
548, 451 S.E.2d 376, 379 (1995).
Such a finding does not, however, preclude the Commission's
conclusion that the burden then shifted to plaintiff to establishhis disability, and that he failed to do so. A disability is
defined as an '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.' Sims v. Charmes/Arby's Roast Beef
N.C. App. 154, 160, 542 S.E.2d 277, 282 (2001)
(quoting N.C. Gen.
Stat. § 97-2(9)). In workers' compensation cases, a claimant
ordinarily has the burden of proving both the existence of his
disability and its degree. Hilliard v. Apex Cabinet Co.
, 305 N.C.
593, 595, 290 S.E.2d 682, 683 (1982).
Defendant filed a Form 60 in November 1998 admitting
plaintiff's right to compensation. Although the filing of a Form
60 establishes an employer's admission of liability for
compensation, it does not create a presumption of continuing
disability. See Sims
, 142 N.C. App. at 159-60, 542 S.E.2d at 281-
82 (holding that use of a Form 60 does not create a presumption of
continuing disability as does a Form 21 agreement entered into
between the employer and the employee). The Industrial Commission
therefore properly concluded that plaintiff bore the burden of
showing continued disability in order to receive benefits.
Plaintiff argues in the alternative that the Commission erred
as a matter of law in concluding plaintiff was not disabled when
terminated. We disagree.
A plaintiff may prove his disability for a worker's
compensation claim 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 ofevidence 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.
Knight v. Wal-Mart Stores, Inc.
, 149 N.C. App. 1, 7, 562 S.E.2d
434, 439 (2002) (quoting Russell v. Lowes Product Distribution
N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)). '[T]he
Commission is the sole judge of the credibility of the witnesses
and the weight to be given their testimony.' Johnson v. Southern
Tire Sales & Serv.
, 358 N.C. 701, 711, 599 S.E.2d 508, 515 (2004)
Plaintiff here presented medical evidence and gave personal
testimony as to his physical incapacity to work as a consequence of
the work-related injury. The Industrial Commission found that
plaintiff was released to work on 29 December 1998, and that no
other competent medical evidence of a continuing disability was
presented. The Commission noted in its findings the medical
examinations of plaintiff conducted by Dr. DuPuy, Dr. Akande, and
Dr. Rhyne. Further, the Commission found that none of the medical
examinations had resulted in plaintiff's being taken out of work
after Dr. DuPuy released plaintiff to return to work. Plaintiff's
only proof of continuing disability was his own testimony, which
the Commission found lacked credibility. The Commission's
conclusion that plaintiff failed to establish he was incapable ofwork as a result of the compensable injury after 5 January 1999 is
Plaintiff next contends the Industrial Commission erred as a
matter of law in failing to award plaintiff temporary total
disability from 5 January 1999 to 31 May 2000 and temporary partial
disability benefits from 1 June 2000 until plaintiff's death. We
Defendant cites Brown v. S & N Communications, Inc
., 124 N.C.
App. 320, 477 S.E.2d 197 (1996) for the proposition that once a
disability is proven, 'there is a presumption that it continues
until the employee returns to work at wages equal to those he was
receiving at the time his injury occurred.' Brown
, 124 N.C. App.
at 329, 477 S.E.2d at 202 (citations omitted).
Here however, as discussed supra
, the Commission concluded:
In the instant case no doctor took decedent
out of work after his release to full-duty
work without restrictions on December 29,
1998. Decedent failed to establish by the
greater weight of the medical evidence that as
a result of the compensable injury by accident
he was incapable of work in any employment
after January 5, 1999.
As the Commission found no incapacity for work resulting from the
injury after 5 January 1999, and therefore no disability, no
presumption was created and the Commission properly concluded that
plaintiff was not eligible for continued partial or total benefits
under the Workers' Compensation Act. See Brown
, 124 N.C. App. at
329, 477 S.E.2d at 202 (holding that in order to receive disabilitycompensation under the Act, the injury must have impaired the
worker's earning capacity).
For the reasons stated herein, the opinion and award of the
Full Commission is affirmed.
Judges WYNN and THORNBURG concur.
Report per Rule 30(e).
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