Harrington v. Pait Logging Co.

EAGLES, Judge. By his only assignment of error plaintiff argues that he is entitled to compensation for permanent total disability pursuant to G.S. 97-29. The deputy commissioner made no findings or conclusions with respect to permanent total disability. However he did note, relying on Perry v. Hibriten Furniture Co., 296 N.C. 88, 249 S.E. 2d 397 (1978), that: If by reason of any compensable injury an employee is unable to work and earn any wages he is totally disabled and entitled to compensation for permanent total disability under 97-29 unless all his injuries are included in the schedule set out in this section [G.S. 97-31]. In that event the injured employee is entitled to compensation exclusively under this section regardless of his ability or inability to earn wages in the same or any other employment; and such compensation is “in lieu of all other compensation, including disfigurement.” On appeal the full Commission stated that: A reading of the record in this case shows unequivocally that the only disability which plaintiff has relating to his injury is *80 disability to the back and left foot. Admittedly, he has other problems completely unrelated to his accident and a combination of his specific disability and his unrelated problems render him totally disabled. Further, the full Commission stated that “our courts have held that when all of a plaintiffs disability resulting from an injury are covered by G.S. 97-31 an employee is entitled to no compensation for permanent total disability.” The full Commission relied on this Court’s decision in Whitley v. Columbia Lumber Mfg. Co., 78 N.C. App. 217, 336 S.E. 2d 642 (1985). However, our decision in Whitley was reversed in Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E. 2d 336 (1986). There the Supreme Court overruled the interpretation previously given to the “in lieu of’ language in G.S. 97-31 by Perry v. Hibriten Furniture Co., supra. The Court held that “the ‘in lieu of clause [of G.S. 97-31] does not prevent a worker who qualifies from recovering lifetime benefits under [G.S. 97-29] and Perry, to the extent it holds otherwise, should be overruled.” 318 N.C. at 96, 348 S.E. 2d at 340. The Court in Whitley reinterpreted the “in lieu of’ clause to permit an employee to receive compensation under either G.S. 97-31 or G.S. 97-29 in an appropriate situation but not under both. “Section 29 is an alternate source of compensation for an employee who suffers an injury which is also included under the schedule [under G.S. 97-31]. The injured worker is allowed to select the more favorable remedy, but he cannot recover compensation under both sections because section 31 is ‘in lieu of all other compensation.’ ” Id. at 96, 348 S.E. 2d at 340. The finder of fact in a workers’ compensation case is the Industrial Commission which has the exclusive duty and authority to find facts related to a disputed claim. Harrell v. Stevens & Co., 54 N.C. App. 582, 284 S.E. 2d 343 (1981), disc. rev. denied, 305 N.C. 152, 289 S.E. 2d 379 (1982). The jurisdiction of this court , is limited to questions of law, whether there is competent evidence to support the Commission’s findings and whether the findings justify its legal conclusions. Carpenter v. Tony E. Hawley, Contractors, 53 N.C. App. 715, 281 S.E. 2d 783, disc. rev. denied, 304 N.C. 587, 289 S.E. 2d 564 (1981). In order to support a conclusion of disability, the Commission must find that after his injury plaintiff was incapable of earning the same wages he earned before his injury in the same or any other employment and that plaintiffs *81 incapacity to earn was caused or significantly contributed to by his injury. See Taylor v. Pardee Hospital, 83 N.C. App. 385, 350 S.E. 2d 148 (1986). Total disability means that as a result of his injury, plaintiff is unable to work and earn any wages. Id. Here it is clear that the Commission felt it could not award benefits to the plaintiff under G.S. 97-29. Accordingly, the opinion and award is vacated and the cause remanded for the Commission to determine if plaintiff is entitled to recover benefits for total disability. On remand, if the Commission finds and concludes from the evidence in this record that plaintiff is totally disabled as a result of his compensable injuries, then it must award benefits under G.S. 97-29. Whitley, supra, 318 N.C. 89, 348 S.E. 2d 336. We note that the Commission in its opinion and award, previously stated, though without finding, that by the combination of pre-existing problems and his compensable injuries, plaintiff had been rendered “totally disabled”; however, the Commission did not comment or make the necessary findings regarding claimant’s wage earning capability. Accordingly, the opinion and award is vacated and the cause is remanded for additional findings and conclusions consistent with the Supreme Court’s holding in Whitley. Vacated and remanded. Chief Judge HEDRICK and Judge PARKER concur.