Appeal by plaintiff from opinion and award entered 4 August
the North Carolina Industrial Commission. Heard in the
Court of Appeals 16 August 2006.
Kellum Law Firm, by John T. Briggs, for plaintiff-appellant.
Orbock, Ruark & Dillard, by Brook M. Webster, for defendants-
Plaintiff Jackson Alexandre appeals from an opinion and award
of the Industrial Commission, awarding him temporary total
disability benefits for the period of 14 March 2003 through 30 June
2003, but holding that he failed to prove that he was disabled
following that date. Because the record contains competent
evidence to support the Commission's finding that plaintiff's
disability ended on 30 June 2003, we affirm the opinion and award
of the Industrial Commission. Under N.C.R. App. P. 10(a), the appellate court's review is
limited to those findings of fact and conclusions of law properly
assigned as error. When a finding of fact is not assigned as
error, the finding is presumed to be supported by competent
evidence and is binding on appeal. Dreyer v. Smith, 163 N.C. App.
155, 156-57, 592 S.E.2d 594, 595 (2004). In this appeal, plaintiff
has only assigned error to the Commission's finding of fact
relating to the date his disability ended. Therefore, the
remaining findings of the Industrial Commission are binding on this
At the time of the Deputy Commissioner's hearing on 9 February
2004, plaintiff Jackson Alexandre was 43 years old and had been
employed as a construction worker and general laborer with
defendant Tesoro Corporation from 22 November 2002 through 26 March
2003. On 14 February 2003, plaintiff was working on a construction
project at Camp Lejeune breaking up pieces of scrap sheetrock for
disposal by kicking the sheetrock with his foot. In the process,
plaintiff lost his balance, felt a pop in his back, and fell
forward onto his knees.
Plaintiff reported the incident to his supervisor Dennis
Boone, who drove plaintiff to Onslow Doctor's Care. There, he was
diagnosed as having sustained an acute lumbar spine sprain, given
medication, and was released to sedentary work. On 17 and 20
February 2003, plaintiff returned to the clinic, reporting
continued low back pain. Each time, the clinic released him toreturn to light-duty work with specific work restrictions. On the
recommendation of the clinic, plaintiff underwent four physical
therapy sessions from 4 through 11 March 2003. Because of
increased pain, he was discharged from the physical therapy program
and told to return to a doctor for a possible referral to an
According to plaintiff, he telephoned his supervisor on
Friday, 14 March 2003, and told him that he would not be able to
work because of his pain. From 13 through 20 March 2003,
plaintiff's wife unsuccessfully sought to obtain defendants'
approval for an orthopedic appointment. Because of defendants'
failure to authorize the appointment, plaintiff went to the
emergency room on 20 March 2003, as a result of which he was
medically excused from work through 24 March 2003. Plaintiff's
wife testified that she communicated to Tesoro by telephone the
fact that defendant had been excused from work. Nevertheless, on
26 March 2003, Tesoro terminated plaintiff's employment in a letter
stating that plaintiff was being terminated for being absent from
work without notification between 18 and 21 March 2003 and from 24
through 26 March 2003.
(See footnote 1)
On 3 June 2003, plaintiff was examined by Dr. George Huffmon,
a neurosurgeon. Dr. Huffmon concluded, after reviewing an MRI,
that plaintiff had a tear in the annulus or the outside of thedisc, as well as degenerative disc disease. Dr. Huffmon testified
that the work-place incident on 14 February 2003 was the cause of
plaintiff's disc tear and his resulting pain. He recommended
sending plaintiff to a pain clinic and to physical therapy. Dr.
Huffmon expected that plaintiff would be able to return to work
after four weeks of physical therapy or 30 June 2003. He indicated
that if physical therapy did not help, then plaintiff should see an
As of the date of the Deputy Commissioner's hearing, plaintiff
had not received any additional medical treatment other than an
emergency room visit while he was residing in Florida. Plaintiff
also has not worked in any employment since he stopped working at
Tesoro on 13 March 2003.
This claim was initially heard by Deputy Commissioner Bradley
W. Houser, who entered an opinion and award on 9 July 2004,
awarding plaintiff total disability benefits beginning 14 March
2003 and continuing until plaintiff returned to work or until
further order of the Commission. On appeal, the Full Commission,
in an opinion and award filed 4 August 2005, concluded that
plaintiff had suffered an injury by accident that caused a tear in
the annulus of a disc at the L5-S1 level, that plaintiff's
termination by Tesoro was not a constructive refusal of suitable
employment, and that plaintiff met his burden of showing that he
was disabled from employment for the period 14 March through 30
June 2003. The Commission, however, further found: "After June 30,
2003, plaintiff received no medical treatment and no doctor tookhim out of work. As of June 30, 2003, plaintiff was capable of
some work, but made no effort to find suitable employment."
Accordingly, the Full Commission awarded plaintiff temporary total
disability only for the period 14 March through 30 June 2003.
Plaintiff timely appealed to this Court.
Plaintiff's sole argument on appeal is that the Commission
erred in concluding that he failed to satisfy his burden of proving
disability after 30 June 2003. 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." N.C. Gen. Stat. § 97-2(9) (2005). An injured
employee has the burden of proving the existence and degree of the
disability. Hilliard v. Apex Cabinet Co.
, 305 N.C. 593, 595, 290
S.E.2d 682, 683 (1982).
In order to meet his burden, plaintiff was required to prove
that "[he] can no longer earn [his] pre-injury wages in the same or
any other employment, and that the diminished earning capacity is
a result of the compensable injury." Gilberto v. Wake Forest
, 152 N.C. App. 112, 116, 566 S.E.2d 788, 792 (2002). An
employee may satisfy the burden of proving disability in one of
(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 evidencethat he is capable of some work but that it
would be futile because of preexisitng
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 Prod. Distribution
, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993) (internal citations omitted).
In this case, plaintiff argues that he was not required to
prove disability under Russell
because he is entitled to an ongoing
presumption of disability. Our courts have applied a presumption
of disability only when (1) there has been an executed Form 21 or
Form 26 or (2) there has been a prior disability award from the
Industrial Commission. Clark v. Wal-Mart
, 360 N.C. 41, 44, 619
S.E.2d 491, 493 (2005). In the absence of those two circumstances,
the burden of proving continued disability remains with plaintiff.
See Cialino v. Wal-Mart Stores
, 156 N.C. App. 463, 470, 577 S.E.2d
345, 350 (2003) (holding that no presumption of disability arose
where plaintiff was injured at work, there was no prior award by
the Industrial Commission, and no Form 21 or Form 26 Agreement was
executed by the parties).
In this case, the parties did not execute a Form 21 or Form 26
Agreement, nor is there a prior award of continuing disability from
the Industrial Commission. The presumption of ongoing disability
does not, therefore, apply, and plaintiff was required to introduce
evidence to satisfy one of the Russell
methods of proving
, 108 N.C. App. at 765, 425 S.E.2d at 457. With regard to the first Russell
method, plaintiff only
provided medical evidence to support a finding of disability
through 30 June 2003. Dr. Huffmon testified that after four weeks
of physical therapy, or 30 June 2003, plaintiff should be able to
return to work. Plaintiff did not return to work after that date,
and he presented no evidence to show that Dr. Huffmon or any other
health care provider believed he was unable to work as of 30 June
Plaintiff, however, argues that Dr. Huffmon's medical opinion
stating that plaintiff could return to work after 30 June 2003 is
"purely speculative" and that the Commission erred by relying on it
to conclude that plaintiff's disability ended after that date.
This argument, however, overlooks the fact that the burden of proof
was on plaintiff. Disregarding Dr. Huffmon's opinion as to the
likely ending date of plaintiff's disability does not undermine the
Commission's decision, since plaintiff provided no other medical
evidence to support his assertion that his disability continued
past 30 June 2003.
Plaintiff also failed to offer evidence to satisfy any of the
other three Russell
methods. He provided no evidence that he
attempted to obtain employment elsewhere, no evidence to indicate
that seeking employment would be futile, and no evidence that he
has obtained other employment at a wage less than that earned prior
to his injury. Therefore, the Commission did not err in concluding
that plaintiff failed to meet his burden of proving disability
after 30 June 2003. Accordingly, we affirm. Affirmed.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).