Appeal by defendants from opinion and award filed 1 August
2003 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 26 May 2004.
Robinson & Lawing, L.L.P., by Jolinda J. Babcock, for
Teague, Campbell, Dennis & Gorham, L.L.P., by George H. Pender
and Tara D. Muller, for defendant-appellants.
American National Can Company, Inc.
(See footnote 1)
Gallagher Bassett Services (carrier-defendant), collectively
defendants, appeal from an opinion and award of the North Carolina
Industrial Commission (Commission) dated 6 August 2003 awarding
David N. Weatherford (plaintiff) ongoing total disability
compensation after 1 July 2000 as a result of his work related knee
injuries. Plaintiff, age 64 (born 1940), began working for defendant in
1976. For the final fifteen years of his employment, plaintiff
worked as a back-end maintainer of the decorator machine which
prints out labels directly onto soda and beer cans. He worked
twelve-hour shifts, four days per week, occasionally working
overtime. His job consisted of standing, walking, climbing steps
and kneeling on cement and metal surfaces.
In 1998, plaintiff began experiencing knee problems. On 17
August 1998, plaintiff met with Dr. King who diagnosed plaintiff
with chondromalacia, patella femoral joint and internal derangement
with mild synovitis in his left knee. Dr. King authorized
plaintiff to be out of work from 15 September 1998 through 8
November 1998 in order to perform arthroscopic surgery on
plaintiff's left knee.
After having surgery on his left knee, plaintiff resumed his
same job duties as a maintainer for defendant. On 17 June 1999,
plaintiff returned to see Dr. King for problems that had developed
with his right knee. Dr. King diagnosed internal derangement with
chondromalacia patella of plaintiff's right knee and performed
arthroscopic surgery on 13 July 1999. Plaintiff returned to work
on 27 September 1999.
On 20 March 2000, plaintiff once again consulted with Dr.
King, complaining of pain and swelling in his right knee. Dr. King
prescribed Novacain, physical therapy and authorized plaintiff to
be out of work until 1 July 2000. Because plaintiff continued to
experience knee pain even after he had been authorized to return to
work, he retired 2 July 2000. Plaintiff received short-term group disability payments for
the periods of medical leave that Dr. King had authorized.
Plaintiff was paid a gross weekly amount of $313.00 in addition to
the following payments: a) $2,369.84 for 9 September 1998 through
7 November 1998; b) $4,247.86 for 20 June 1999 through 3 October
1999; and c) $4,292.57 for 20 March 2000 to 1 July 2000.
On 13 September 2000, plaintiff filed two separate
occupational disease claims, one for each knee. Defendants filed
an Industrial Commission (I.C.) Form 61 on 15 November 2000,
denying plaintiff's claims. In April 2002, Dr. King testified in
his deposition plaintiff was not physically capable of returning to
his former job with defendant due to his knee conditions.
After reviewing Dr. King's deposition and hearing testimony
from plaintiff, two of plaintiff's co-workers, and plaintiff's
wife, the parties stipulated to plaintiff's disability and the
compensability of plaintiff's claim. They further stipulated
plaintiff was disabled from 9 September 1998 to 7 November 1998;
from 17 June 1999 to 2 October 1999; and from 20 March 2000 to 1
July 2000. However, no I.C. Form 21 was ever filed. Nonetheless,
pursuant to the stipulation, defendants agreed to pay plaintiff for
periods of work missed due to his occupational diseases, subject to
a credit for all disability paid by the defendant's group insurance
plan. The parties also stipulated to plaintiff's compensation
rate: $532.00 for the left knee, and $560.00 for the right knee.
At the hearing before the Deputy Commissioner, the sole issue
was whether the plaintiff was entitled to benefits after 1 July
2000; and, if so, the amount and type of benefits. After hearinglive testimony, reviewing deposition testimony, exhibits and other
submissions of the parties, the Deputy Commissioner issued an
opinion and award on 15 October 2002. The Deputy Commissioner
concluded that plaintiff sustained a compensable occupational
disease as a result of work related injury to his knees and was
therefore entitled to ongoing disability benefits. Defendants were
ordered to pay past medical compensation as well as ongoing
temporary total disability benefits and future medical treatment
for plaintiff's knee condition.
Defendants appealed to the Full Commission. In an opinion and
award dated 1 August 2003, the Commission found plaintiff to be
totally disabled, affirmed the opinion and award of the Deputy
Commissioner, with modifications, and ordered defendants to pay
total disability benefits from 9 September 1998 to 7 November 1998;
from 17 June 1999 to 2 October 1999; and from 20 March 2000
continuing through the present date until further order of the
Commission. In addition, defendants were ordered to pay all
medical expenses related to plaintiff's work related injury.
Defendants appeal from the Commission's order dated 1 August 2003.
At the outset, defendant argues, and we agree, that plaintiff
had no continuing presumption of disability after 1 July 2000.
Johnson v. Southern Tire Sales and Serv.
, 358 N.C. 701, 706, 599
S.E.2d 508, 512 (2004) (burden remained on employee to prove
disability in the absence of Form 21 or Form 26).
We now review the dispositive issue raised on appeal: whether
the Commission erred in finding and concluding that plaintiff's
knee pain makes him incapable of any employment after 1 July 2000.
It is well-settled that review of an Industrial Commission
decision by this Court is limited to the determination of whether
there is competent evidence to support the Commission's Findings of
Fact and whether those findings support the Conclusions of Law.
Cox v. City of Winston-Salem,
157 N.C. App. 228, 232, 578 S.E.2d
669, 673 (2003); Pernell v. Piedmont Circuits
, 104 N.C. App. 289,
292, 409 S.E.2d 618, 619 (1991) (citation omitted). The
Commission's findings of fact are conclusive on appeal even where
there is contrary evidence, and such findings may only be set aside
where there is a complete lack of competent evidence to support
them. Johnson v. Herbie's Place
157 N.C. App. 168, 171, 579
S.E.2d 110, 113 (2003) (citation omitted); see also Adams v. AVX
349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). It is the
Commission's duty to judge the credibility of the witnesses and to
determine the weight given to testimony. Bailey v. Sears Roebuck
, 131 N.C. App. 649, 653, 508 S.E.2d 831, 834 (1998).
Disability under the Workers' Compensation Act is defined as
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. N.C. Gen. Stat. § 97-2(9) (2003). The burden is on
the employee to show that he is unable to earn pre-injury wages,
either in the same employment or in other employment. Hilliard v.
Apex Cabinet Co.
, 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). Plaintiff may show his incapacity to earn pre-injury wages 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 working
in any employment;
(2) the production of
evidence that he is capable of some work, but
that he has, after 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
the production of evidence that he has
obtained other employment at a wage less than
he earned prior to the injury.
Russell v. Lowes
, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457
(1993) (emphasis added). Medical evidence that the plaintiff
suffers from pain as a result of physical injury, combined with the
plaintiff's own testimony that he is in pain has been held to be
sufficient to support a conclusion of total disability. Webb v.
Power Circuit, Inc.
141 N.C. App. 507, 512-13, 540 S.E.2d 790,
793-94 (2000) (affirming opinion and award in plaintiff's favor
based on testimony from plaintiff regarding nature of the injury
and medical testimony regarding severity of pain and nature of
treatment subsequent to injury); Barber v. Going West Transp. Inc.
134 N.C. App. 428, 436, 517 S.E.2d 914, 920 (1999). Where . . .
an employee's effort to obtain employment would be futile because
of age, inexperience, lack of education or other preexisting
factors, the employee should not be precluded from compensation for
failing to engage in the meaningless exercise of seeking a job
which does not exist. Peoples v. Cone Mills Corp.
, 316 N.C. 426,
444, 342 S.E.2d 798, 809 (1986) (any effort by plaintiff to obtainsedentary employment, the only employment of which he is physically
capable, would have been futile because of such preexisting
factors; e.g., plaintiff was 57 years old, had limited education
and work experience, and his injury was caused by over 25 years of
performing same duties for defendant).
Here, Dr. King explained plaintiff's condition as of 20 March
2000 and testified as to complaints of genuine pain consistent with
plaintiff's knee injuries. Dr. King described plaintiff's
[S]ynovitis, which is the inflammatory process
inside the knee and leg weakness or muscle
weakness. And they sort of run hand in hand
when - the pain becomes significant and the
inflammation becomes significant, when the
patient is less willing to use the leg, that
leads to weakness and then weakness in turn
keeps the synovitis and the pain at a fairly
On 4 May 2000, plaintiff returned to see Dr. King after having been
out of work and having received six weeks of physical therapy and
medication. At that visit, Dr. King noted in his medical records
that plaintiff was unable to return to work stating:
In a case like this, lab tests, dates,
results, medications, doses and treatment
plans are not helpful in determining whether
the plaintiff can return to work or not. What
is helpful in making that determination is
actually sending him back to work and trying
to perform. We have done that and his knee has
repeatedly swelled and caused limping, pain,
tenderness and swelling. Recommend against
further working for him.
Although the parties stipulated to compensability and
disability until 1 July 2000, the Commission concluded plaintiff'sdisability continued after his retirement based on the following
findings of fact:
1. At the time of the hearing before [the]
Deputy Commission, plaintiff was 61 years
old and was born June 12, 1940. Plaintiff did
not finish high school but did obtain a GED.
Plaintiff had brief experience working as a
mechanic and in construction prior to becoming
employed with defendants in 1976. . . . For 25
years plaintiff worked in the same
facility. . . .
. . .
23. Plaintiff . . . would have continued to
work but for his knee conditions and . . . his
inability to work as of July 1, 2000 was due
to the condition of his knees.
. . .
26. Plaintiff has continued to suffer from
pain, swelling and weakness in his knees. Dr.
King has indicated that even if plaintiff
could find employment he would be limited to
no climbing, stooping, squatting, bending
kneeling, or going up steps and only
intermittent standing for a total of two hours
out of an eight hour workday, with the
remainder of the time in a seated position.
Dr. King testified that if plaintiff had not
retired, he would not have allowed him to
return to work.
27. Plaintiff testified that he has never had
a sedentary position. He has no job training
or skills to obtain sedentary work.
28. Plaintiff testified that he is unable to
stay in one position any period of time. If he
sits for too long, he is unable to get up. He
is unable to walk for very long and must
balance his activities with his continuous
. . .
34. As of July 1, 2000 plaintiff reached
maximum medical improvement. Plaintiff's pain
is genuine and his testimony regarding his
pain, symptoms and abilities is accepted as
credible and convincing.
35. Plaintiff has been disabled since July 1,
2000 and continues to be disabled. Defendants
have presented no evidence of suitable
employment to rebut plaintiff's disability.
Accordingly, plaintiff satisfied the
first and third Russell
prongs as reflected in the pertinent Commission's conclusion of
2. [T]hrough the production of medical
evidence that his pain is genuine and his own
credible testimony regarding his pain,
symptoms and abilities, plaintiff has proven
that he is physically incapable of any
employment as a consequence of his compensable
occupational diseases. . . . [And] [p]laintiff
has also shown that even if he were capable of
some sedentary work, it would be futile for
him to engage in a job search in light of his
age, lack of work experience, lack of
training, lack of transferable skills and
In concluding that plaintiff was disabled, the Commission
plaintiff's evidence as follows: he was 61 years old at
the time he retired; he had a GED and had worked all his life in
maintenance positions, without having had any office skills or
training; he testified he would have continued to work except for
his knee condition and that he retired early because the pain in
his knees was so severe and he was concerned that continuing to
work, given his knee conditions and the activities required of him,
would eventually prevent him from being able to walk; his early
retirement entitled him to a reduced pension and health benefit,
less than that commensurate with having worked a thirty year career
with defendant; he also testified that he continued to suffer from
genuine pain, swelling and weakness in his knees even afterretirement; defendant's medical examiner, Dr. Elkin, as well as Dr.
King, both testified as to plaintiff's pain being consistent with
his medical condition; and, finally, Dr. King restricted plaintiff
from repetitive bending, stooping, squatting, or walking for more
than a few minutes at a time upon returning to work for defendant
after 1 July 2000. In other words, plaintiff's condition, as well
as his medical restrictions, prevented him from performing his job
Moreover, the Commission's findings of fact 1, 26, and 27
based on competent evidence indicate plaintiff went beyond proving
his disability and his inability to earn a wage by showing that
even if he were capable of some sedentary work, it would be futile
for him to engage in a job search in light of his age, lack of work
experience, lack of training and education, lack of transferable
skills and physical impairment.
Therefore, based on competent evidence, including personal and
medical testimony, the Commission properly concluded plaintiff
suffered from a disability which rendered him incapable of any
employment after 1 July 2000. The opinion and award of the
Commission is affirmed.
Judges TYSON and STEELMAN concur.