{ "id": 8525122, "name": "PHILLIP SHAW, Employee, Plaintiff v. UNITED PARCEL SERVICE, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Shaw v. United Parcel Service", "decision_date": "1994-10-18", "docket_number": "No. 9310IC772", "first_page": "598", "last_page": "603", "citations": [ { "type": "official", "cite": "116 N.C. App. 598" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "407 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554636, 2555469, 2556685, 2556307, 2553854 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0505-05", "/nc/329/0505-01", "/nc/329/0505-02", "/nc/329/0505-03", "/nc/329/0505-04" ] }, { "cite": "403 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "102 N.C. App. 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525592 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/102/0726-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "457" }, { "page": "457" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "765" }, { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "139 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "861" } ], "opinion_index": 0 }, { "cite": "263 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572007 ], "year": 1965, "pin_cites": [ { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0569-01" ] }, { "cite": "424 So.2d 1161", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9549906 ], "year": 1982, "pin_cites": [ { "page": "1165" } ], "opinion_index": 0, "case_paths": [ "/so2d/424/1161-01" ] }, { "cite": "25 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1943, "pin_cites": [ { "page": "868" }, { "page": "867" } ], "opinion_index": 0 }, { "cite": "223 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604451 ], "weight": 2, "year": 1943, "pin_cites": [ { "page": "237" }, { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0233-01" ] }, { "cite": "357 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "678" }, { "page": "678", "parenthetical": "emphasis retained" } ], "opinion_index": 0 }, { "cite": "320 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728643 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "42" }, { "page": "42-43" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0038-01" ] }, { "cite": "361 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "87 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358649 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/87/0507-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "115 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "31" } ], "opinion_index": 1 }, { "cite": "252 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625537 ], "year": 1960, "pin_cites": [ { "page": "719" } ], "opinion_index": 1, "case_paths": [ "/nc/252/0716-01" ] }, { "cite": "357 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "677-78", "parenthetical": "emphasis added" }, { "page": "678", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "320 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728643 ], "year": 1987, "pin_cites": [ { "page": "42", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0038-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "pin_cites": [ { "parenthetical": "emphasis added" }, { "page": "42" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 563, "char_count": 13180, "ocr_confidence": 0.761, "pagerank": { "raw": 2.263406097013512e-07, "percentile": 0.782883673913035 }, "sha256": "c55112fb2f94ed2693fd60896cefdd7c94f08cc71e9925987df8d4ec5fdc6729", "simhash": "1:24c8cf6c840f6456", "word_count": 2131 }, "last_updated": "2023-07-14T22:38:55.005039+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge ORR concurs in part and dissents in part." ], "parties": [ "PHILLIP SHAW, Employee, Plaintiff v. UNITED PARCEL SERVICE, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "JOHNSON, Judge.\nThis is the second time this matter has been before our Court. We summarize the prior proceedings and facts in part from our earlier opinion, Shaw v. UPS and Liberty Mutual Ins. Co., No. 91110IC855 (N.C. App. filed 20 October 1992):\nOn 7 December 1987, plaintiff sustained a compensable injury by accident arising out of and in the course of his employment with defendant-employer. As a result of the 7 December 1987 accident, plaintiff sustained a chronic talofibular ligament sprain. On 1 September 1988, while performing his normal job duties, plaintiff re-twisted his right ankle and sustained an aggravation of the original 7 December 1987 injury. Plaintiffs average weekly wage on 1 September 1988 was $295.42, yielding a compensation rate of $196.96.\nOn 7 September 1988, plaintiff was terminated by defendant-employer for reasons having nothing to do with his ankle injury. As a result of the aggravation on 1 September 1988 of his prior compensable ankle injury of 7 December 1987, plaintiff was out of work and incapable of earning wages with defendant-employer or in any employment from 8 September 1988 through 4 October 1988. On 5 October 1988, plaintiff was capable of resuming his regular duties with defendant-employer; however, due to his termination on 7 September 1988, plaintiff did not return to work with defendant-employer.\nId. at 2-3. On 13 September 1988, plaintiff filed a claim under the North Carolina Workers\u2019 Compensation Act. On 14 June 1990, following a hearing on the claim, Deputy Commissioner Scott M. Taylor issued an Opinion and Award. Deputy Commissioner Taylor found that plaintiff had sustained an injury by accident arising out of and in the course of his employment with defendant-employer, and concluded:\n4. As a result of his aggravating injury by accident on 1 September 1988, plaintiff is entitled to temporary total disability compensation at the rate of $196.96 per week, from 8 September 1988 through 4 October 1988. G.S. \u00a7 97-29; G.S. \u00a7 97-2(5).\n5. As a result of his aggravating injury by accident on 1 September 1988, plaintiff has a 10% permanent partial disability of his right foot, for which he is entitled to compensation at the rate of $196.96 per week, for a period of 14.4 weeks. G.S. \u00a7 97-31(14).\nThe Deputy Commissioner awarded plaintiff benefits as to plaintiffs permanent partial disability of his right foot under North Carolina General Statutes \u00a7 97-31 (1991), although plaintiff sought an election of remedies pursuant to North Carolina General Statutes \u00a7 97-30 (1991). The Deputy Commissioner also denied plaintiffs request for attorney\u2019s fees and costs pursuant to North Carolina General Statutes \u00a7 97-88.1 (1991). Plaintiff appealed to the Full Industrial Commission; the Commission affirmed the Deputy Commissioner\u2019s decision.\nOn appeal to our Court, plaintiff argued that the Commission committed reversible error when it did not allow plaintiff to elect to receive benefits under North Carolina General Statutes \u00a7 97-30, and that the Commission committed reversible error when it failed to award attorney\u2019s fees and costs to plaintiff under North Carolina General Statutes \u00a7 97-88.1. Our Court held:\nPlaintiff\u2019s evidence clearly tended to establish that since 28 October 1988 and continuing to the time of hearing, he had suffered a loss in post-injury wages and that based on his education, training, and experience plaintiff\u2019s earnings reflected his limited capacity to earn the same wages he earned at the time of his injury. Therefore, plaintiff was entitled to a determination of whether he suffered a reduction in his capacity to earn, thus qualifying to be compensated pursuant to N.C. Gen. Stat. \u00a7 97-30. Because the Commission failed to make findings as to the employee\u2019s diminished wage earning capacity, we remand this case to the Commission for additional findings on the issue of wage earning capacity and for an appropriate award based on those findings. See Strickland v. Burlington Industries, 87 N.C. App. 507, 361 S.E.2d 394 (1987). . . . On remand, the Commission may reconsider [the issue of attorney\u2019s fees and costs] in light of our disposition of the first issue.\nShaw at 4-5. On 22 March 1993, the Full Industrial Commission issued an Opinion and Award denying plaintiff an election of benefits under North Carolina General Statutes \u00a7 97-30. Plaintiff gave timely notice of appeal to our Court.\nPlaintiff argues on appeal that the Commission committed reversible error by not allowing plaintiff to elect to receive benefits under North Carolina General Statutes \u00a7 97-30.\nNorth Carolina General Statutes \u00a7 97-30 provides allowance for \u201cwhere the incapacity for work resulting from [an] injury is partial[.]\u201d North Carolina General Statutes \u00a7 97-31 sets out a specific schedule of injuries and the rate and period of compensation for those injuries. Our Supreme Court noted in Gupton v. Builders Transport, 320 N.C. 38, 42, 357 S.E.2d 674, 678 (1987) that \u201ca claimant who is entitled to benefits under either N.C.G.S. \u00a7 97-31 or N.C.G.S. \u00a7 97-30 may select the more munificent remedy.\u201d The Court discussed North Carolina General Statutes \u00a7 97-30:\nWhen an employee suffers a \u201cdiminution of the power or capacity to earn,\u201d Branham v. Panel Co., 223 N.C. 233, 237, 25 S.E.2d 865, 868 (1943), he or she is entitled to benefits under N.C.G.S. \u00a7 97-30_\nAccordingly, \u201c[w]here an employee can show that the physical injury from which he is suffering causes appreciable employment disability, the employee is allowed to recover under which provisions affords [sic] him greater compensation.\u201d Patin v. Continental Cas. Co., 424 So.2d 1161, 1165 (La. App. 1982). . . .\nIn order to secure an award under N.C.G.S. \u00a7 97-30, the plaintiff has the burden of showing \u201cnot only permanent partial disability, but also its degree.\u201d [Hall v. Chevrolet Co., 263 N.C. 569, 575, 139 S.E.2d 857, 861 (1965).] \u201cThe compensation is to be computed upon the basis of the difference in the average weekly earnings before the injury and the average weekly wages he is able to earn thereafter.\u201d Branham v. Panel Co., 223 N.C. at 236, 25 S.E.2d at 867.\nGupton, 320 N.C. at 42-43, 357 S.E.2d at 678 (emphasis retained).\nIn Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993), our Court noted, as to impairment of an employee\u2019s earning capacity, that \u201c[t]he burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment.\u201d We noted that the employee may meet this burden in one of four ways, one of which is \u201cthe production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.\u201d Id. After the claimant meets this initial burden, the burden shifts to the employer to show that not only were suitable alternative jobs available to the plaintiff, but that the plaintiff was capable of obtaining one of these jobs. Tyndall v. Walter Kiddie Co., 102 N.C. App. 726, 403 S.E.2d 548, disc. review denied, 329 N.C. 505, 407 S.E.2d 553 (1991).\n\u201cThe standard of review on appeal to this Court of a workers\u2019 compensation case is whether there is any competent evidence in the record to support the Commission\u2019s findings of fact, and whether these findings support the conclusions of the Commission.\u201d Russell, 108 N.C. App. at 765, 425 S.E.2d at 457. The Commission, on remand, was required to determine whether plaintiff suffered a reduction in his capacity to earn, thus qualifying him to be compensated pursuant to North Carolina General Statutes \u00a7 97-30.\nWe observe that plaintiff met his burden of showing he was unable to earn the same wages he had earned before the injury by producing evidence that he obtained employment at a wage less than what he earned prior to the injury. Russell; Tyndall. There is no evidence in the record to indicate that defendant, plaintiffs employer, met its burden of showing that alternative jobs were available to plaintiff, and that plaintiff was capable of obtaining one of those jobs. Id. Nonetheless, and despite having found that plaintiff had a 10% permanent partial disability of his right foot, the Commission found that\nplaintiffs actual wages decreased, but taking all facts into account, there was no convincing evidence presented . . . that plaintiffs ability to earn the same wages was affected at all by the injury or any resulting physical problems. . . . Plaintiffs wage earning capacity was not affected by his work-related injury. Thus an award under 90-31 is the only alternative in the case at hand. As 97-30 is not applicable based upon the record review as a whole, it cannot be elected over 97-31.\nWe find that the Commission\u2019s findings are conclusory and not supported by competent evidence. As such, because we find that plaintiffs presumption of post-injury diminished earnings capacity was established by plaintiff and unrebutted by defendant, we direct the Commission to allow plaintiff to elect benefits pursuant to North Carolina General Statutes \u00a7 97-30.\nFinally, plaintiff argues that the Commission committed reversible error by failing to award attorney\u2019s fees and costs pursuant to North Carolina General Statutes \u00a7 97-88.1. Because we feel that the parties \u201cbrought, prosecuted, or defended\u201d this matter with reasonable grounds, we find the Commission properly declined to award attorney\u2019s fees in this matter. See North Carolina General Statutes \u00a7 97-88.1.\nRemanded to allow plaintiff to elect benefits pursuant to North Carolina General Statutes \u00a7 97-30.\nJudge WYNN concurs.\nJudge ORR concurs in part and dissents in part.", "type": "majority", "author": "JOHNSON, Judge." }, { "text": "Judge Orr\nconcurring in part, dissenting in part.\nBecause I find that the Commission\u2019s findings of fact support its conclusion that plaintiff is not entitled to elect benefits under N.C. Gen. Stat. \u00a7 97-30 as a matter of law, I respectfully dissent on the election of remedies issue. On the issue regarding attorney\u2019s fees, I concur.\nPlaintiff has not excepted to the Commission\u2019s findings of fact; these findings are, therefore, conclusive on appeal. See Pratt v. Central Upholstery Co., Inc., 252 N.C. 716, 719, 115 S.E.2d 27, 31 (1960). Thus, this Court\u2019s review is limited to whether the findings of fact support the legal conclusions of the Commission.\nAs correctly stated by the majority, an employee is entitled to benefits under N.C. Gen. Stat. \u00a7 97-30 \u201cwhere the incapacity for work resulting from the injury is partialf.]\u201d N.C. Gen. Stat. \u00a7 97-30 (emphasis added). Thus, N.C. Gen. Stat. \u00a7 97-30 \u201cprovide[s] compensation for loss of wages due to a[n] .. . \u2018incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u2019 \u201d Gupton v. Builders Transport, 320 N.C. 38, 42, 357 S.E.2d 674, 677-78 (1987) (emphasis added). An employee is entitled to benefits under N.C. Gen. Stat. \u00a7 97-30 when he suffers a'\u201c \u2018diminution of the power or capacity to earn\u2019 \u201d caused by the work-related injury. Id. at 42, 357 S.E.2d at 678 (citation omitted).\nIn the present case, the Commission found (and no exception was taken) that \u201c[p]laintiff\u2019s loss of wage-earning capacity was not due to his work-related injury and its aggravation.\u201d I would conclude that this finding by the Commission supports a conclusion that plaintiff\u2019s loss of wage-earning capacity was not a result of plaintiff\u2019s work-related injury and therefore compels the conclusion that plaintiff was not entitled to obtain benefits under N.C.G.S. \u00a7 97-30.\nAccordingly, I would affirm the Commission\u2019s decision to deny plaintiff an election of benefits under N.C.G.S. \u00a7 97-30.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge Orr" } ], "attorneys": [ "Gulley and, Calhoun, by Wilbur R Gulley, for plaintiff-appellant.", "Cranfill, Sumner & Hartzog, by P. Collins Barwick, III, for defendants-appellees." ], "corrections": "", "head_matter": "PHILLIP SHAW, Employee, Plaintiff v. UNITED PARCEL SERVICE, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. 9310IC772\n(Filed 18 October 1994)\n1. Workers\u2019 Compensation \u00a7 285 (NCI4th)\u2014 past injury diminished earnings capacity established by plaintiff \u2014 no rebuttal from defendant \u2014 election of benefits required\nWhere plaintiff showed that he was unable to earn the same wages he had earned before the injury by evidence that he obtained other employment at a wage less than that he was earning at the time of his injury, and defendant employer failed to show that alternative jobs were available to plaintiff and that he was capable of obtaining one of those jobs, plaintiff was entitled to elect benefits under N.C.G.S. \u00a7 97-30 rather than benefits for permanent partial disability of his foot under N.C.G.S. \u00a7 97-31.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 383.\n2. Workers\u2019 Compensation \u00a7 471 (NCI4th)\u2014 attorney\u2019s fees properly denied\nWhere the parties \u201cbrought, prosecuted, or defended\u201d this matter with reasonable grounds, the Industrial Commission properly declined to award attorney\u2019s fees in this matter.\nAm Jur 2d, Workers\u2019 Compenation \u00a7 722.\nJudge Orr concurs in part and dissents in part.\nAppeal by plaintiff from Opinion and Award .entered 22 March 1993 by the North Carolina Industrial Commission. Heard in the Court of Appeals 22 August 1994.\nGulley and, Calhoun, by Wilbur R Gulley, for plaintiff-appellant.\nCranfill, Sumner & Hartzog, by P. Collins Barwick, III, for defendants-appellees." }, "file_name": "0598-01", "first_page_order": 628, "last_page_order": 633 }