Cockman v. PPG Industries

HEDRICK, Chief Judge. We must consider this case in light of our Supreme Court’s decision in Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E. 2d 336 (1986). In Whitley, the Court specifically overruled Perry v. Furniture Co., 296 N.C. 88, 249 S.E. 2d 397 (1978). In Perry, the Supreme Court had stated: The language of G.S. 97-31 . . . compels the conclusion that if by reason of a compensable injury an employee is unable to work and earn any wages he is totally disabled, G.S. 97-2(9), and entitled to compensation for permanent total disability under G.S. 97-29 unless all his injuries are included in the schedule set out in G.S. 97-31. In that event the injured employee is entitled to compensation exclusively under G.S. 97-31 regardless of his ability or inability to earn wages in the same or any other employment. Id. at 93-4, 249 S.E. 2d at 401 (emphasis original). In Whitley, the Supreme Court decided that G.S. 97-29 and G.S. 97-31 were alternate sources of compensation for an employee who suffers a disabling injury which is also included as a scheduled injury. The Court stated that “[t]he injured worker is allowed to select the [106] more favorable remedy, but he cannot recover compensation under both sections. . ." Id. at 96, 348 S.E. 2d at 340. It is obvious that in the present case, the Commission felt that it was bound to award benefits to the employee under G.S. 97-31(23) and that it could not award benefits under G.S. 97-29. Because it is clear that the Commission acted under a misapprehension of the law, the opinion and award must be vacated and this cause remanded for the Commission to determine whether claimant is entitled to recover benefits for total disability pursuant to G.S. 97-29 or benefits for permanent partial disability under G.S. 97-31. Upon remand the Commission must determine whether the employee is totally disabled because of the injury to his back as that term is defined in Little v. Food Service, 295 N.C. 527, 246 S.E. 2d 743 (1978). If the Commission does find and conclude from the evidence that the claimant is totally disabled because of the injury to his back it must award benefits under G.S. 97-29. If on the other hand the Commission finds and concludes from the evidence that the claimant suffers only a permanent partial disability, it will find the degree of disability and award benefits according to the schedule set out in G.S. 97-31. We point out that there is evidence in the record from which the Commission could find that the claimant is totally disabled or that he is not permanently disabled but that he suffers a degree of permanent partial disability to his back. We are advertent that Findings of Fact Nos. 8 and 9 made by the Commission by way of adopting the same findings of the Deputy Commissioner might arguably be sufficient to support an ultimate finding or conclusion of total disability. We, however, point out that these findings do not refer to the wage earning capacity of the claimant, an essential element of total disability. Moreover, the further finding and conclusion made by the Commission that the claimant suffered a 20% disability to his back is in conflict with Findings of Fact Nos. 8 and 9. We caution the Commission of the dangers inherent in adopting as its own any findings of the Deputy Commissioner when it, the Full Commission, is about to reverse the decision of the Deputy Commissioner. The better practice would be for the Commission to make all of the findings and conclusions, rather than taking the shortcut of [107] adopting the findings and conclusions of the hearing officer. Indeed the Commission is charged with the responsibility of making the findings and conclusions. To do so would demonstrate that the Commission has carefully evaluated the evidence in the record. For the reasons stated, the opinion and award dated 20 February 1986 is vacated, and the cause is remanded to the Industrial Commission to make new findings and conclusions and enter the appropriate award. If the Commission deems it necessary it may on its own motion, pursuant to the provisions of G.S. 97-85, receive further evidence from which it may draw its findings and conclusions and enter the proper award. Vacated and remanded. Judges Martin and Cozort concur.