Jones v. Murdoch Center

PHILLIPS, Judge. The sole question presented is whether the Full Commission erred in awarding plaintiff compensation for permanent total disability under G.S. 97-29. That plaintiff is in fact totally and permanently incapable of holding any gainful employment because of the compensable injury sustained is overwhelmingly established by the evidence and defendant does not argue otherwise. What defendant contends is that since the injury was to her back and disability to the back is included in the compensation schedule for specific bodily members and organs contained in G.S. 97-31 that her compensation is limited to the schedule for back injuries therein stated. G.S. 97-31 does provide, as defendant emphasizes, that the compensation therein authorized “shall be in lieu of all other compensation.” Nevertheless, this contention has been rejected by our Supreme Court under similar circumstances on several different occasions, and for the abiding reason that our workers’ compensation law mandates compensation for all injuries that result from a work-related accident. Perry v. Hibriten Furniture Co., 296 N.C. 88, 249 S.E. 2d 397 (1978); Little v. Anson County Schools Food Service, 295 N.C. 527, 246 S.E. 2d 743 (1978). These decisions make plain that our workers’ compensation law with respect to impaired bodily organs and members listed in G.S. 97-31 is as follows: When all of a worker’s injuries are included in the schedule set out in G.S. 97-31 his compensation is limited to *130 that provided for in the statutory schedule without regard to his ability or inability to earn wages. When all of a worker’s injuries are not included in the schedule contained in G.S. 97-31 and the worker’s earning capacity has been permanently, but only partially, impaired he is entitled to the scheduled compensation provided for in G.S. 97-31 and an award for permanent partial disability as provided for in G.S. 97-30. When all of a worker’s injuries are not covered by the schedule contained in G.S. 97-31 and the worker’s earning capacity has been totally and permanently impaired, he is entitled to an award for permanent and total disability under the provisions of G.S. 97-29. That the law as above stated was correctly applied to plaintiffs case by the Full Commission is clear, we think, and we affirm the award made. All of her injury is not to her back for the simple reason that the nerves that emanate from the spinal cord do not serve just the back. They radiate into and serve other parts of the body, and the injured nerves which radiate into and serve plaintiffs arms, legs, shoulders and chest have made it impossible for her to work and do many other things as well. Under strikingly similar circumstances the same decision was arrived at in Fleming v. K-Mart Corp., 67 N.C. App. 669, 313 S.E. 2d 890 (1984), aff'd, 312 N.C. 538, 324 S.E. 2d 214 (1985), which we deem controlling here. In that case because injury to the back led to arachnoiditis, which caused pain in the feet and legs, making it impossible for plaintiff to hold a job, it was held that all of plaintiffs injury was not to the back and that he was entitled to total and permanent disability payments under G.S. 97-29, rather than back disability payments under G.S. 97-31. Affirmed. Judges Webb and Martin concur.