{ "id": 8526267, "name": "JAMES VANCE SILVER, Employee, Plaintiff, v. ROBERTS WELDING CONTRACTORS, Employer, and THE PMA GROUP, Carrier, Defendants", "name_abbreviation": "Silver v. Roberts Welding Contractors", "decision_date": "1995-02-07", "docket_number": "No. 9410IC159", "first_page": "707", "last_page": "713", "citations": [ { "type": "official", "cite": "117 N.C. App. 707" } ], "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": "429 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2548849, 2548625, 2547510, 2549370, 2548670 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0574-02", "/nc/333/0574-01", "/nc/333/0574-05", "/nc/333/0574-03", "/nc/333/0574-04" ] }, { "cite": "425 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "109 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524589 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/109/0123-01" ] }, { "cite": "345 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779801 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0179-01" ] }, { "cite": "357 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728643 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0038-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "374 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "485" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527187 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/92/0473-01" ] }, { "cite": "439 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "113 N.C. App. 440", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522851 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/113/0440-01" ] }, { "cite": "181 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "279 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565922 ], "year": 1971, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0132-01" ] }, { "cite": "429 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "110 N.C. App. 226", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525219 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/110/0226-01" ] }, { "cite": "246 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564809 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0527-01" ] }, { "cite": "139 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572007 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0569-01" ] }, { "cite": "342 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704100 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0426-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "pin_cites": [ { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "440 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "113 N.C. App. 619", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523934 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/113/0619-01" ] }, { "cite": "282 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0001-01" ] }, { "cite": "434 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "112 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520298 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0103-01" ] }, { "cite": "435 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "112 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522550 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/112/0535-01" ] } ], "analysis": { "cardinality": 627, "char_count": 13732, "ocr_confidence": 0.727, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.3236281343043552 }, "sha256": "9737d6226b25510248e360ce27dfccd4d31533f02cf2faba2f062001aa23ba0e", "simhash": "1:8661f58a3d2f4c66", "word_count": 2150 }, "last_updated": "2023-07-14T20:31:41.091249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and JOHN concur." ], "parties": [ "JAMES VANCE SILVER, Employee, Plaintiff, v. ROBERTS WELDING CONTRACTORS, Employer, and THE PMA GROUP, Carrier, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nPlaintiff, James Vance Silver, and defendants Roberts Welding Contractors (Roberts) and The PMA Group appeal from the opinion and award of the North Carolina Industrial Commission awarding plaintiff payments for temporary total disability and temporary partial disability and vocational rehabilitation services.\nPlaintiff was employed by Roberts as an iron worker helper which required him to work with a welder on the steel frame of buildings. On 13 October 1987, plaintiff was injured when two pieces of concrete fell on him. The first piece of concrete knocked off his hard hat and the second piece struck him directly on the head. As a result of this accident, plaintiff suffered a skull fracture, a small epidermal hematoma, and some bleeding along the temporal lobe of the brain. Plaintiff was taken to the hospital and treated by a neurosurgeon. After being discharged from the hospital, plaintiff suffered from severe headaches and neck pains.\nPlaintiff was examined by Dr. J. Ross Shuping who diagnosed him as having sustained brain damage as a result of the accident which impaired his reasoning abilities and short-term memory. Dr. Shuping believed plaintiff was not suited for heavy construction labor but released him to return to work on 20 April 1988. Plaintiff inquired about a position with Roberts and was told that nothing suitable was available.\nPlaintiff intermittently worked a series of jobs from 1988 to 1991. He worked as a security guard for one month but his position was transferred to another city. While plaintiff felt he could handle the job, the new location was not within a reasonable driving distance.\nThe Commission found that plaintiff was permanently partially disabled and awarded benefits for temporary total disability and temporary partial disability. The Commission also concluded that defendants should provide vocational rehabilitation services to plaintiff. Plaintiff appeals the benefit portion of the Commission\u2019s award and defendants cross-appeal the Commission\u2019s conclusion that they must provide vocational rehabilitation services.\nI.\nPlaintiff first argues that the Commission erred by finding that temporary total disability ends when a claimant reaches maximum medical improvement. We disagree.\nAppellate review of an award of the Industrial Commission is limited to two questions: (1) whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether the Commission\u2019s findings of fact justify its legal conclusions. Gilliam v. Perdue Farms, 112 N.C. App. 535, 435 S.E.2d 780 (1993); Gibbs v. Leggett and Platt, Inc., 112 N.C. App. 103, 434 S.E.2d 653 (1993). The Commissions\u2019s findings of fact are conclusive on appeal if supported by competent evidence even though there is evidence to support a contrary finding. Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981); Gilbert v. Entenmann\u2019s, Inc., 113 N.C. App. 619, 440 S.E.2d 115 (1993).\nAn employee injured in the course of employment is disabled under the Workers\u2019 Compensation Act (Act) if the injury results in an \u201cincapacity ... to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u201d N.C. Gen. Stat. \u00a7 97-2(9) (1991). Disability is defined by the Act as an impairment of the injured employee\u2019s earning capacity rather than physical disablement. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986); Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857 (1965). The claimant bears the burden of proving the extent or degree of the disability suffered. Little v. Anson County Schools Food Service, 295 N.C. 527, 246 S.E.2d 743 (1978); Bowden v. The Boling Co., 110 N.C. App. 226, 429 S.E.2d 394 (1993). Once the disability is proven, there is a presumption that it continues until the \u201cemployee returns to work at wages equal to those he was receiving at the time his injury occurred.\u201d Watkins v. Central Motor Lines, Inc., 279 N.C. 132, 137, 181 S.E.2d 588, 592 (1971); Radica v. Carolina Mills, 113 N.C. App. 440, 439 S.E.2d 185 (1994).\nIn the instant case, the Commission made the following findings of fact:\n15. As of August 29, 1991 plaintiff reached maximum medical improvement and was able to work at a moderate level as long as he could avoid bending and stooping. He had wage earning capacity and was able to find suitable work as a security guard earning $170.00 per week. However, he was impaired as a result of this injury and had to overcome resistance on the part of the Employment Security Commission and potential employers in order to obtain employment. Furthermore, the job he found was temporary and he was soon unemployed.\n16. Plaintiff requires vocational rehabilitation to assist him in obtaining employment.\n17. As a result of the injury by accident giving rise to this claim, plaintiff has sustained permanent damage to his brain, an important internal organ, for which he would be entitled to $20,000.00 under the Workers\u2019 Compensation Act. He also was rendered permanently partially disabled. However, he did not become totally and permanently disabled as he has alleged. Because of that allegation, he did not make an election of benefits as between G.S. 97-30 and G.S. 97-31, and the amounts are so close that it is not clear which would provide the greater remedy.\nPlaintiff argues that the Commission erred by concluding that his right to continuing disability benefits ended when he reached maximum medical improvement. Plaintiff cites this Court\u2019s decision in Watson v. Winston-Salem Transit Authority, 92 N.C. App. 473, 374 S.E.2d 483 (1988), which held that a finding of maximum medical improvement is not equivalent to a finding that the employee is able to earn the same wage earned prior to injury and therefore does not dispose of plaintiff\u2019s claim. Id. at 476, 374 S.E.2d at 485. A finding of maximum medical improvement is simply the prerequisite to a determination of the amount of any permanent disability under N.C. Gen. Stat. \u00a7 97-31. Id.\nIn the case sub judice, however, the Commission rejected plaintiff\u2019s contention that he was totally disabled since he had wage-earning capacity and was able to find suitable employment as a security guard. Plaintiff testified that he was able to work as a security guard but that his position was relocated to another city that was not within a reasonable driving distance from his home. The Commission found that plaintiff was permanently partially disabled which entitled him to an election of benefits as provided by Gupton v. Builders Transport, 320 N.C. 38, 357 S.E.2d 674 (1987). The Commission\u2019s findings are supported by competent evidence and this assignment of error is overruled.\nII.\nPlaintiff next argues that the Commission erred by failing to apply the \u201codd-lot\u201d doctrine to his case. While the \u201codd-lot\u201d doctrine has not been adopted in North Carolina, our Supreme Court, in Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374 (1986), discussed the doctrine in a footnote. The Court stated:\nUnder the \u201codd-lot\u201d doctrine, \u201ctotal disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor-market.\u201d 2 Larson Workmen\u2019s Compensation, \u00a7 57-51 (1983). Under this doctrine, if the claimant establishes a prima facie case that he is an odd-lot worker, the burden then shifts to the employer to show the existence of work that is regularly available to the claimant. Id.\nHendrix, 317 N.C. at 192, 345 S.E.2d at 381-2 n.2. The Court declined to adopt the \u201codd-lot\u201d doctrine in Hendrix because the issue was not properly presented for appeal and the evidence did not require the doctrine\u2019s application. Id.\nIn the instant case, the Commission found that plaintiff had wage-earning capacity and was able to work at a moderate level as long as he could avoid bending and stooping. Even if the \u201codd-lot\u201d doctrine was recognized in North Carolina, the doctrine does not apply to this case since the Commission found that plaintiff could find suitable employment. This assignment of error is overruled.\nIII.\nPlaintiff finally argues that the Commission failed to make specific factual findings regarding the amount of past temporary disability compensation to which plaintiff was entitled. We find that the Commission\u2019s findings of fact provide a sufficient chronology of the approximate times plaintiff was employed after his injury and support the Commission\u2019s award. This assignment of error is overruled.\nDefendants^ Cross-Appeal\nDefendants appeal the portion of the Commission\u2019s opinion and award requiring them to provide further vocational rehabilitation assistance to plaintiff. Defendants argue that there is no evidence in the record to support the Commission\u2019s conclusion that defendants should have to provide vocational rehabilitation services and argue that plaintiff possessed wage-earning capacity after his injury and was able to find suitable work as a security guard. We disagree.\nThe Commission is vested with the exclusive authority to find facts and, on appeal, this Court is bound by the Commission\u2019s findings when they are supported by direct evidence or reasonable inferences drawn from the record. Ivey v. Fasco Industries, 109 N.C. App. 123, 425 S.E.2d 744, disc. review denied, 333 N.C. 574, 429 S.E.2d 570 (1993). The Commission found that plaintiff was impaired as a result of his head injury and had to overcome resistance on the part of potential employers in order to obtain employment. The Commission also found that plaintiff required vocational rehabilitation to assist him in obtaining stable employment. Dr. Terry White, a physician whose practice involves patients who have suffered head traumas, testified that plaintiff could benefit from vocational rehabilitation. We have reviewed the record and conclude that the Commission\u2019s findings are supported by competent evidence. This assignment of error is overruled.\nAccordingly, for the foregoing reasons the opinion and award of the Industrial Commission is\nAffirmed.\nJudges GREENE and JOHN concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Lore & McClearen, by R. Edwin McClearen, for plaintiff.", "Cranfill, Sumner & Hartzog, L.L.R, by David A. Rhoades and Kari Lynn Russwurm." ], "corrections": "", "head_matter": "JAMES VANCE SILVER, Employee, Plaintiff, v. ROBERTS WELDING CONTRACTORS, Employer, and THE PMA GROUP, Carrier, Defendants\nNo. 9410IC159\n(Filed 7 February 1995)\n1. Workers\u2019 Compensation \u00a7 236 (NCI4th)\u2014 maximum medical improvement \u2014 finding of permanent partial disability \u2014 wage-earning capacity\nThe Industrial Commission did not err in a workers\u2019 compensation action by finding that plaintiff was permanently partially disabled where plaintiff had been an iron worker helper; he was injured when two pieces of concrete fell on him, the first knocking off his hard hat and the second striking him directly on the head; he suffered brain damage as a result of the accident; he was not able to return to his former employer, intermittently worked a series of jobs, then worked as a security guard, a job which he felt he could handle; that job was transferred to another city which was not within a reasonable driving distance; and the Commission concluded that plaintiff was permanently partially disabled, and awarded benefits for temporary total disability and temporary partial disability. Although plaintiff argued that the Commission erred by concluding that his right to continuing disability benefits ended when he reached maximum medical improvement, a finding of maximum medical improvement is simply the prerequisite to a determination of the amount of any permanent disability under N.C.G.S. \u00a7 97-31. The Commission\u2019s findings of permanent partial disability, which entitled him to an election of benefits, were supported by competent evidence.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 395-399.\n2. Workers\u2019 Compensation \u00a7 236 (NCI4th)\u2014 permanent partial disability \u2014 wage-earning capacity \u2014 odd-lot doctrine\nThe Industrial Commission did err in a workers\u2019 compensation action by failing to apply the odd-lot doctrine, under which total disability may be found in workers who are not altogether incapacitated but who are so handicapped that they will not be employed regularly in any well-known branch of the labor market. Even if the odd-lot doctrine was recognized in North Carolina, the doctrine does not apply to this case since the Commission found that plaintiff could find suitable employment.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 395-399.\n3. Workers\u2019 Compensation \u00a7 259 (NCI4th)\u2014 temporary disability compensation \u2014 findings\u2014sufficient\nThe Industrial Commission\u2019s findings were sufficient to provide a sufficient chronology of the approximate times plaintiff was employed after his injury and support the amount of temporary disability compensation awarded by the Commission.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 382, 418 et seq.\n4. Workers\u2019 Compensation \u00a7 215 (NCI4th)\u2014 vocational rehabilitation \u2014 findings\u2014sufficient\nThe Industrial Commission did not err in a workers\u2019 compensation action by requiring defendant to provide further vocational rehabilitation assistance to plaintiff based upon findings that plaintiff was impaired as a result of his head injury and had to overcome resistance on the part of employers to obtain employment and that plaintiff required vocational rehabilitation to assist him in obtaining stable employment. The findings were supported by competent evidence.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 379, 435.\nAppeal by plaintiff and defendants from Opinion and Award entered 2 November 1993 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 October 1994.\nLore & McClearen, by R. Edwin McClearen, for plaintiff.\nCranfill, Sumner & Hartzog, L.L.R, by David A. Rhoades and Kari Lynn Russwurm." }, "file_name": "0707-01", "first_page_order": 739, "last_page_order": 745 }