RAY BARRETT,
Employee,
Plaintiff
v
.
N.C. Industrial Commission
No. 187444
MORGAN CORPORATION/WAL-MART,
Employer,
and LIBERTY MUTUAL
Carrier,
Defendants.
Cranfill, Sumner & Hartzog, L.L.P., by Jeffery A. Howle and
Meredith T. Black, for defendants-appellants.
Bollinger & Piemonte, P.C., by Bobby L. Bollinger, Jr., for
plaintiff-appellee.
ELMORE, Judge.
This case arises out of a work-related injury that occurred on
12 October 2001, one day after Ray Barrett (plaintiff) began work
for Morgan Construction (defendant). Plaintiff operated a pan, a
large piece of construction equipment on which he had received some
limited training, but was nonetheless injured during his first hour
of solo operation. Plaintiff was operating the pan when he came
across an unexpected mound of dirt that bumped the pan and causedthe seat to bounce violently. Plaintiff immediately felt pain in
his lower back, had to be helped out of the pan, and was taken to
a local hospital.
Defendant challenged the nature of plaintiff's injuries during
the proceedings below, but does not now challenge the Commission's
conclusion that plaintiff's injury was work-related. Rather,
defendant's contention is that the Commission erred in ordering
disability and medical payments until otherwise ordered. Defendant
agrees with the dissenting opinion of the Commission that would
have ceased payments as of the date plaintiff was released from
jail, a point at which the dissent concludes no evidence was
introduced that would support a continued award.
Our review of an opinion and award from the Full Commission is
well-documented. We are “limited to reviewing whether any
competent evidence supports the Commission's findings of fact and
whether the findings of fact support the Commission's conclusions
of law.” Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530
S.E.2d 549, 553 (2000). This Court “does not have the right to
weigh the evidence and decide the issue on the basis of its weight.
The court's duty goes no further than to determine whether the
record contains any evidence tending to support the finding.”
Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998)
(quoting Anderson v. Construction Co., 265 N.C. 431, 434, 144
S.E.2d 272, 274 (1965)), reh'g denied, 350 N.C. 108, 532 S.E.2d 522
(1999). If there is any evidence at all, taken in the light most
favorable to the plaintiff, the finding of fact stands, even ifthere is substantial evidence to the contrary. Id. The plaintiff
is entitled to the benefit of every reasonable inference in his or
her favor. See Poole v. Tammy Lynn Ctr., 151 N.C. App. 668, 672,
566 S.E.2d 839, 841 (2002). The full Commission is the “sole judge
of the weight and credibility of the evidence,” and this Court may
not second-guess those determinations. Deese, 352 N.C. at 116, 530
S.E.2d at 553.
Defendant challenges the evidence supporting the Commission's
findings that:
12. Dr. Hartman treated plaintiff
conservatively with a “turtle shell” brace
that plaintiff was required to wear for
approximately six (6) months. Plaintiff was
unable to work from 12 October 2001 and
continuing through the present. Dr. Hartman
opined plaintiff retains an eighteen percent
(18%) permanent partial disability as a result
of his work-related incident on 12 October
2001. The greater weight of the evidence is
that plaintiff has not reached maximum medical
improvement and is in need of further medical
evaluation. Plaintiff missed the last couple
of appointments with Dr. Hartman due to
defendant's denial of the claim and
plaintiff's lack of insurance.
14. As of the date of the hearing before the
Deputy Commissioner, plaintiff has not
returned to suitable employment and his
symptoms were such that he could only
withstand about two (2) hours of activity and
then he would have to sit or lie to rest. As
of the date of the hearing before the Deputy
Commissioner, plaintiff was still suffering
from a considerable amount of residual pain
from the injury and that hampered his work
activities. Plaintiff had searched for a job
at every painting contractor in the Shelby
area but had been unable to find any work.
15. The Full Commission finds that in light of
plaintiff's physical condition and job skills,plaintiff had performed a reasonable but
unsuccessful job search.
These findings are supported by competent evidence in the record,
or are otherwise credibility determinations that we will not
second-guess.
Dr. Mark Hartman, plaintiff's orthopedic physician, testified
that because plaintiff's L-1 burst fracture was not severe, surgery
was not required and a non-invasive brace was used instead. He
testified that people suffering from plaintiff's condition usually
return to work within nine months, but he also stated that “some
[people] couldn't” and plaintiff “may not be able to”__the
determination hinging on the amount of plaintiff's pain. Dr.
Hartman also testified that, despite not having seen plaintiff in
nearly two years, plaintiff had reached maximum medical improvement
and had a partial permanent disability rating of eighteen percent.
Plaintiff, however, provided evidence that he was still in great
amounts of pain due to his injury.
PLAINTIFF: I still have a lot of pain. I
can't - when I sit down, I can't - I just
can't get straightened back up. Takes a
little while to get straightened back up. I'm
worth about two hours - I'm - walk around
about two hours and I'm - about as long as I
can go.
COUNSEL: Well, after about two hours, what do
have to do?
PLAINTIFF: Have to get back and lay down or
get some, you know, chairs - somewhere where I
can rest.
. . .
COUNSEL: Are you still taking pain medication
because of your back?
PLAINTIFF: Well, sometimes, when I can afford
it.
Plaintiff's testimony regarding his pain, his continued need of
care, and what he could do provide some evidence to support the
Commission's findings. Even though plaintiff's testimony
conflicted with Dr. Hartman's testimony, which was based on
hundreds of cases similar to plaintiff's, the Commission was
persuaded by plaintiff's testimony and we will not second-guess its
determination. See Deese, 352 N.C. at 116, 530 S.E.2d at 553.
Plaintiff also testified about his job search, and his
testimony supports the Commission's findings in that regard. He
testified that he looked for painting jobs in Shelby and Charlotte.
He also sought out jobs in meat-cutting and bartending, but was
unable to find any jobs that he could maintain due to his back
pain, which required him to sit or lie down every two hours.
Plaintiff has little education and marginal experience in jobs that
he may be able to do in his condition. Further, plaintiff said he
would likely not be capable of performing any heavy construction
work__defendant's type of work. Thus, each of the Commission's
contested findings were grounded in competent evidence and will not
be overturned.
Accordingly then, we now review the Commission's conclusions
of law. The Commission, in part, concluded that:
3. As a result of plaintiff's compensable
injury, he is entitled to temporary total
disability at his compensable rate of $383.35
per week from 12 October 2001 to 1 April 2002
and from 5 November 2002 and continuing until
further Order of the Commission. N.C. Gen.
Stat. § 97-29.
4. Plaintiff is entitled to have defendants
pay all medical expenses incurred by plaintiff
as a result of his compensable injury for so
long as such examinations, evaluations and
treatments may reasonably be required to
effect a cure, give relief or lessen
plaintiff's period of disability. N.C. Gen.
Stat. § 97-25.
In order to recover disability payments, plaintiff has the
burden “to show that he is unable to earn the same wages he had
earned before the injury, either in the same employment or in other
employment.” Russell v. Lowes Product Distribution, 108 N.C. App.
762, 765, 425 S.E.2d 454, 457 (1993) (citing Hilliard v. Apex
Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982)).
Plaintiff 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 pre-
existing 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.
Id. (internal citations omitted). Plaintiff and defendant dispute
which of the four methods the Commission relied on in reaching its
conclusion that plaintiff was disabled. Defendant argues that
there was no medical evidence of plaintiff's incapacity, and
therefore the award should be reversed, but plaintiff argues that
the Commission relied on the second ground under Russell. See id. It is evident from the facts, evidence, and opinion that the
Commission relied either upon the second or third grounds for
finding plaintiff was disabled. As discussed above, the Commission
found that plaintiff had performed a reasonable job search. He had
contacted all the painting companies in his home area, but due to
his debilitating pain, no one could offer him limited work.
According to his testimony, plaintiff's pain also interfered with
his ability to find work in the meat-cutting or bartending areas,
his only two previous skill sets. Plaintiff's lack of education,
limited skill sets, and debilitating pain all combined to make his
job search unsuccessful. Thus, the Commission's conclusion that
plaintiff was disabled is supported by its findings. See Russell,
108 N.C. App. at 766, 425 S.E.2d at 457 (weight and credibility
given to plaintiff's testimony regarding his search will not be
overturned); see also Fletcher v. Dana Corporation, 119 N.C. App.
491, 459 S.E.2d 31 (1995) (discussing “work search” test).
Defendant's argument to the contrary is misplaced. See White v.
Weyerhaeuser Co., 167 N.C. App. 658, 672, 606 S.E.2d 389, 399
(2005) (the absence of medical evidence would be fatal to a
plaintiff relying on the first method of proving disability, but
its absence “does not preclude a finding of disability under one of
the other three tests.”) (citing Bridwell v. Golden Corral Steak
House, 149 N.C. App. 338, 342, 561 S.E.2d 298, 302, disc. review
denied, 355 N.C. 747, 565 S.E.2d 193 (2002)).
Although we affirm the Commission's conclusions of law in the
case sub judice, the Commission's conclusions do not support itsactual award. Following up on conclusion of law three, the
Commission ordered that: “[s]ubject to a reasonable attorney's fee
herein approved defendants shall pay temporary total disability to
plaintiff at the rate of $383.35 per week from 12 October 2001 to
1 April 2002, and from 5 November 2002 and continuing through 1
April 2003. Those amounts that have accrued shall be paid in a
lump sum.” Ordering that payments cease as of 1 April 2003 is
contrary to the Commission's conclusion that payments should
continue until further order. We agree with plaintiff that this
inconsistency was a clerical error.
After the opinion and award was filed, plaintiff's counsel
asked the Commission to amend its opinion and award to bring
paragraph one of the award in line with conclusion of law three.
The Commission did so in an amended opinion and award filed on 18
November 2004. However, on or about 26 August 2004, defendant
filed a notice of appeal. This filing divested the Commission of
any jurisdiction to enter the amended opinion and award, thus we
cannot review or affirm it. See RPR & Assocs. v. University of
N.C.-Chapel Hill, 153 N.C. App. 342, 346-47, 570 S.E.2d 510, 513
(2002) (citing Bowen v. Motor Co., 292 N.C. 633, 635, 234 S.E.2d
748, 749 (1977)). Nonetheless, if the Commission intended for
defendant to cease disability payments on 1 April 2003 and not have
them ongoing, then its second sentence stating “[t]hose amounts
that have accrued shall be paid in a lump sum ,” would be
superfluous. The Commission did not review the matter until 18
March 2004 and the opinion and award was not filed until 29 July2004, thus making all payments lump sum if no payment was to
continue beyond the order. Further, the Commission stated it was
affirming the award of the deputy commissioner, who did in fact
order that payments continue until further notified. Moreover,
this date has no discernable significance; despite stating that we
must affirm it, defendant cannot find any support for the date of
1 April 2003. Accordingly, we remand the matter to the Commission
for the limited purpose of amending paragraph one of the award to
represent its conclusions of law stated earlier.
We have also reviewed plaintiff's contention that the trial
court abused its discretion in denying attorney's fees pursuant to
N.C. Gen. Stat. § 97-88.1. We find this contention to be without
merit. In sum, we affirm the Commission's conclusions of law in
its opinion and award, and we remand the matter to the Commission
to amend its opinion and award to represent those conclusions.
Affirmed in part, remanded in part.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).
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