Appeal by defendants from opinion and award entered 16 June
2006 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 9 May 2007.
Robert A. Lauver for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Jeffrey A.
Doyle and Dana C. Moody, for defendants-appellants.
Defendants Gator Wood, Inc. and Fireman's Fund Insurance
Company appeal from an opinion and award of the North Carolina
Industrial Commission awarding disability and medical compensation
to plaintiff Bobby Britt. Because the Commission's findings of
fact are supported by competent evidence with respect to the award
of temporary total disability compensation for the period of 1 June
2002 through 16 June 2002 and for temporary partial disability
after 6 February 2003, we uphold the awards for those time periods.
With respect, however, to the award of temporary total disability
compensation for the period of 13 January 2003 through 7 February
2003, we must remand for further factual findings under Russell v.
Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993).
Plaintiff was hired in April 1999 by defendant-employer as a
timber buyer. In this position, plaintiff scouted properties,
walked the land to demarcate areas for logging, measured trees,
negotiated prices, and performed title searches. Because
defendant-employer had lost a major contract, plaintiff was
notified in April 2002 that he would be laid off, with his last day
of work being 31 May 2002.
On 1 May 2002, plaintiff sustained an admittedly compensable
injury by accident while working on a tract where
defendant-employer was conducting logging operations. Plaintiff
stepped on a log, lost his footing, and fell in an awkward,
twisting manner. He landed hard with his right knee directlystriking the log. Despite the injury and even though the knee
ached, plaintiff continued to work. He did not seek immediate
medical treatment, as he hoped the pain would resolve itself.
After a week had passed, during which the swelling and pain in
the injured knee continued, plaintiff saw Dr. Edward F. Hill. Dr.
Hill diagnosed plaintiff's condition as a mild knee strain. Over
the following weeks, the pain in plaintiff's knee became
progressively worse, such that, by 31 May 2002, he was physically
incapable of performing the regular duties of his job as a timber
buyer. Plaintiff testified: "[T]he pain was just getting
increasingly worse. It was harder to walk. Crawling was not an
option. The more time on the leg, the more pain and the swelling."
On 5 June 2002, plaintiff returned to Dr. Hill with continued
knee pain and was referred to Dr. Scott Hannum, an orthopedist.
After seeing plaintiff on 17 June 2002, Dr. Hannum ordered an MRI.
The MRI suggested that plaintiff had a torn medial meniscus. On 10
July 2002, Dr. Hannum wrote plaintiff out of work, and a month
later, on 13 August 2002, plaintiff underwent recommended knee
surgery. Following the surgery, defendants accepted the
compensability of the injury in a Form 60, but specified that
disability did not begin until the date of the surgery.
Plaintiff continued to have follow-up visits with Dr. Hannum,
and on 2 December 2002, Dr. Hannum concluded that plaintiff had
reached maximum medical improvement. He assigned a 7% permanent
partial disability rating to plaintiff's right knee and released
plaintiff to work without restrictions. In his deposition, Dr.Hannum stated that plaintiff could have returned to his previous
occupation as a timber buyer had there been a position available,
but acknowledged that such work would have given plaintiff a "hard
time" and that plaintiff would need to be especially cautious with
respect to his knee. According to Dr. Hannum, even after recovery,
plaintiff's knee injury placed him at risk of developing post-
traumatic arthritis and of requiring further knee surgery in the
Plaintiff obtained opinions from two additional orthopedists
_ Dr. Gilbert Whitmer and Dr. Kevin Speer _ regarding his
disability rating. Both Dr. Whitmer and Dr. Speer assigned a 12%
permanent partial disability rating to plaintiff's right knee.
They recommended that plaintiff's activities be restricted,
including no lifting or carrying over 30 pounds and no excessive
squatting, kneeling, crawling, and stair or ladder climbing. Dr.
Hannum ultimately agreed that the disability ratings and activity
restrictions of the other two orthopedists were "reasonable."
Plaintiff remained out of work from 1 June 2002 through 6
February 2003. On 7 February 2003, plaintiff obtained employment
in a different line of work and at lower wages than he had
previously earned as a timber buyer.
When the parties were unable to reach an agreement regarding
the extent of the benefits to which plaintiff was entitled,
plaintiff requested a hearing before the Industrial Commission.
Deputy Commissioner J. Brad Donovan entered an opinion and award on
6 June 2005 that awarded plaintiff temporary total disabilitycompensation for the period 17 June 2002 through 12 January 2003
and permanent partial disability compensation for an additional 24
Plaintiff appealed to the Full Commission, which modified the
deputy commissioner's decision in an opinion and award filed on 16
June 2006. The Commission determined that plaintiff was entitled
to: (1) temporary total disability beginning on 1 June 2002 and
continuing through 7 February 2003; (2) temporary partial
disability beginning on 7 February 2003 and continuing for the
remainder of 300 weeks from the date of injury; and (3)
compensation for "medical expenses incurred or to be incurred as a
result of the compensable injury as may be required to provide
relief, effect a cure, or lessen the period of disability,"
including compensation to address any post-traumatic arthritis that
plaintiff might develop or any future knee surgery that he might
require. Defendants timely appealed to this Court.
Our review of a decision of the Industrial Commission "is
limited to determining whether there is any competent evidence to
support the findings of fact, and whether the findings of fact
justify the conclusions of law." Cross v. Blue Cross/Blue Shield
104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). "The
findings of the Commission are conclusive on appeal when such
competent evidence exists, even if there is plenary evidence for
contrary findings." Hardin v. Motor Panels, Inc.
, 136 N.C. App.
351, 353, 524 S.E.2d 368, 371, disc. review denied
, 351 N.C. 473,543 S.E.2d 488 (2000). This Court reviews the Commission's
conclusions of law de novo. Deseth v. LensCrafters, Inc.
, 160 N.C.
App. 180, 184, 585 S.E.2d 264, 267 (2003).
Defendants do not dispute the award of benefits for the period
17 June 2002 through 12 January 2003. Defendants contend, however,
that the Commission erred in awarding (1) temporary total
disability benefits for the periods 1 June 2002 through 16 June
2002 and 13 January 2003 through 7 February 2003; and (2) temporary
partial disability benefits beginning 7 February 2003.
(See footnote 1)
"The term 'disability' means 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). In order to support a conclusion of compensable
disability, the Commission must find:
(1) that plaintiff was incapable after his
injury of earning the same wages he had earned
before his injury in the same employment, (2)
that plaintiff was incapable after his injury
of earning the same wages he had earned before
his injury in any other employment, and (3)
that this individual's incapacity to earn was
caused by plaintiff's injury.
Hilliard v. Apex Cabinet Co.
, 305 N.C. 593, 595, 290 S.E.2d 682,
683 (1982). There are four methods by which a plaintiff may prove
(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 evidencethat 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.
, 108 N.C. App. at 765, 425 S.E.2d at 457 (internal
 With respect to the period of 1 June 2002 through 16 June
2002, defendants first contend that there was no competent evidence
of plaintiff's disability. Defendants do not, however, dispute
that plaintiff was totally disabled due to his compensable accident
as of 17 June 2002, the date he was first examined by Dr. Hannum.
Following the MRI, "the results of which suggested a torn medial
meniscus," Dr. Hannum wrote plaintiff out of work due to his knee
condition. The evidence from Dr. Hannum meets the requirements of
the first method of proof set forth in Russell
As for the two weeks before plaintiff's visit with Dr. Hannum,
defendants contend that since plaintiff had not yet been written
out of work or assigned any work restrictions, he has not proven
that he was disabled. The Commission could, however, reasonably
draw the inference that plaintiff's condition on 1 June 2002 was
the same as his condition a mere two weeks later on 17 June 2002 _
the date by which defendants agree plaintiff had become totally
disabled. On 1 June 2002, plaintiff was suffering from the torn medial
meniscus resulting from his fall on 1 May 2002, and he testified to
his steadily progressing pain. That condition had simply not yet
been diagnosed. By 31 May 2002 _ several weeks after the accident
_ plaintiff's condition had gotten "increasingly worse" such that
"[i]t was harder to walk" and "[t]he more time on the leg, the more
pain and the swelling." See Perkins v. Broughton Hosp.
, 71 N.C.
App. 275, 279, 321 S.E.2d 495, 497 (1984) ("The ordinary person
knows, without having to consult a medical expert, when it is
necessary to lie down and rest because his or her own body is
tired, exhausted, or in pain, and the law has no inhibition against
testimony to that effect. The credibility and weight of
plaintiff's testimony was for the Commission to decide, not us.").
In short, the Commission had before it medical evidence that
established, under the first prong of Russell
, that plaintiff was
totally disabled as of 17 June 2002, as well as plaintiff's
testimony permitting the inference that plaintiff's condition as of
1 June 2002 was physically the same as on 17 June 2002. This
combination of evidence is sufficient to support the Commission's
finding of total temporary disability as of 1 June 2002.
 Defendants, however, alternatively argue that because
plaintiff was laid off on 31 May 2002, "the evidence of record
shows that [p]laintiff's loss of wage earning capacity . . . was
not the result of his injury by accident but instead was due to an
economic downturn." Defendants have focused on the wrong issue.
While the immediate cause of the loss of plaintiff's wages as of 1June 2002 may have been the lay-off, that fact does not preclude a
finding of disability. As Peoples v. Cone Mills Corp.
, 316 N.C.
426, 437, 342 S.E.2d 798, 805 (1986) explained, "an injured
employee's earning capacity" is determined "by the employee's own
ability to compete in the labor market." Thus, the fact that
plaintiff was laid off does not preclude a finding of total
disability if, because of plaintiff's injury, he was incapable of
obtaining a job in the competitive labor market.
A plaintiff meets the burden of proving that incapacity by
offering evidence consistent with one of the methods of proof set
forth in Russell
. Because plaintiff presented medical evidence
showing an impairment of his earning capacity under the first prong
, the burden shifted to defendants to show that there
were suitable jobs that plaintiff was capable of obtaining during
the first two weeks in June 2002. Burwell v. Winn-Dixie Raleigh,
, 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994) ("If the
claimant presents substantial evidence that he is incapable of
earning wages, the employer has the burden of producing evidence to
rebut the claimant's evidence. This requires the employer to 'come
forward with evidence to show not only that suitable jobs are
available, but also that the plaintiff is capable of getting one
taking into account both physical and vocational limitations.'"
(quoting Kennedy v. Duke Univ. Med. Ctr.
, 101 N.C. App. 24, 33, 398
S.E.2d 677, 682 (1990))). As defendants have made no attempt to
demonstrate that they met their burden, we uphold the Commission'saward of temporary total disability compensation for the period of
1 June 2002 to 16 June 2002.
 With respect to the period of 13 January 2003 to 7
February 2003, defendants assert that plaintiff failed to prove
total disability because Dr. Hannum released plaintiff to return to
work without restrictions in December 2002. In response, plaintiff
contends that he was entitled to a presumption of ongoing
disability despite having received a doctor's release to work.
A presumption of disability only applies, however, 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).
Neither of these conditions is satisfied in this case. A Form 60
does not give rise to a presumption of continuing disability. Id.
at 44-45, 619 S.E.2d at 493-94. As such, plaintiff was not
relieved of his burden of proving disability for the period of 13
January 2003 to 7 February 2003 under one of the Russell
Plaintiff has not met the requirements of the first method of
proof under Russell
since he presented no medical evidence that he
was incapable of work in any employment
during the period of 13
January 2003 to 7 February 2003. In fact, Dr. Hannum released
plaintiff to return to work in December 2002. Thus, the
Commission's finding of total disability for the period of 13
January 2003 to 7 February 2003 cannot be premised upon the first
method. The absence of medical proof of total disability, however,
"does not preclude a finding of disability under one of the other
] tests." White v. Weyerhaeuser Co.
, 167 N.C. App.
658, 672, 606 S.E.2d 389, 399 (2005). Where, as here, the findings
show that "plaintiff, although limited in the work he can perform,
is capable of performing some work," and there is evidence that
plaintiff may have satisfied Russell
methods two or three, the
Commission must make findings addressing those two methods of
proof. Workman v. Rutherford Elec. Membership Corp.
, 170 N.C. App.
481, 490, 613 S.E.2d 243, 250 (2005). We must, therefore, remand
to the Commission to make findings regarding plaintiff's
disability, under Russell
methods two and three, for the period of
13 January 2003 to 7 February 2003. See id.
at 491, 613 S.E.2d at
250 ("We remand to the Commission to make findings of fact, based
on competent evidence, to determine whether plaintiff is totally
 Finally, defendants assert that plaintiff failed to
establish the existence of ongoing disability following his return
to work on 7 February 2003 sufficient to entitle him to an award of
temporary partial disability benefits. When, however, a worker
presents evidence that satisfies the fourth prong of Russell
"that he has obtained other employment at a wage less than that
earned prior to the injury," 108 N.C. App. at 765, 425 S.E.2d at
457 _ "[s]uch evidence, while not dispositive of disability, shifts
the burden to the employer to establish that the employee could
have obtained higher earnings." Larramore v. Richardson Sports,Ltd. Partners
, 141 N.C. App. 250, 259-60, 540 S.E.2d 768, 773
(2000), aff'd per curiam
, 353 N.C. 520, 546 S.E.2d 87 (2001).
Here, plaintiff presented evidence that he obtained other
employment on 7 February 2003 at lower wages than he had previously
earned, as well as evidence showing agreement among all the doctors
that he had permanent restrictions on the type of work he could
perform. Consequently, the burden shifted to defendants to show
that plaintiff could obtain a higher-paying job.
Although defendants challenge the sincerity of plaintiff's job
search and make various arguments regarding plaintiff's educational
and vocational background, they presented no evidence to the
Commission to show that plaintiff could, in fact, have obtained
employment at higher earnings. See Bond v. Foster Masonry, Inc.
139 N.C. App. 123, 131, 532 S.E.2d 583, 588 (2000) ("Competent
evidence indicates that plaintiff at bar met his burden under
method (4)] . . . by showing his earnings through his
employment with Direct Transport, Inc. These earnings, likewise,
were competent evidence of plaintiff's earning capacity. Defendant
presented no evidence that plaintiff could obtain employment
earning more than this amount.").
Accordingly, the Commission could properly determine that
plaintiff's reduced wages were a manifestation of his disability
and, further, that this diminished earning capacity entitled him to
temporary partial disability benefits. See Whitfield v. Lab. Corp.
, 158 N.C. App. 341, 354, 581 S.E.2d 778, 787 (2003)
("Commission's finding that plaintiff had demonstrated a reducedwage earning capacity under the fourth option . . . was a proper
basis for the Commission to award plaintiff partial disability
benefits."). The award of temporary partial disability is,
therefore, also upheld.
Affirmed in part; remanded in part.
Judges HUNTER and ELMORE concur.