{ "id": 11919638, "name": "In re: ALBERT DOUGLAS STONE, Employee, Plaintiff v. G & G BUILDERS, Employer, EMPLOYERS MUTUAL INSURANCE CO., Carrier, Defendants", "name_abbreviation": "Stone v. G & G Builders", "decision_date": "1996-03-05", "docket_number": "No. COA95-378", "first_page": "671", "last_page": "675", "citations": [ { "type": "official", "cite": "121 N.C. App. 671" } ], "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": "89 ALR3d 783", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "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": "374 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "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, "pin_cites": [ { "page": "475-76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0473-01" ] }, { "cite": "439 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "190", "parenthetical": "\"release to return to work is not the equivalent of a finding that the employee is able to earn the same wage earned prior to the injury\"" }, { "page": "190" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 440", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522851 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "447", "parenthetical": "\"release to return to work is not the equivalent of a finding that the employee is able to earn the same wage earned prior to the injury\"" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0440-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-83", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 440, "char_count": 8176, "ocr_confidence": 0.751, "pagerank": { "raw": 3.0397889230834054e-07, "percentile": 0.8551834489192227 }, "sha256": "d6342a4601354dd814968c787e6f3d82edd489a9eb49c87c4c154df702b84ccf", "simhash": "1:23d4c78376ab4406", "word_count": 1330 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McGEE concur." ], "parties": [ "In re: ALBERT DOUGLAS STONE, Employee, Plaintiff v. G & G BUILDERS, Employer, EMPLOYERS MUTUAL INSURANCE CO., Carrier, Defendants" ], "opinions": [ { "text": "GREENE, Judge\nPursuant to N.C. Gen. Stat. \u00a7 97-86, Albert Douglas Stone (plaintiff) appeals from a 19 December 1994 Opinion and Award of the Industrial Commission (Commission) which denied plaintiffs claim for worker\u2019s compensation benefits.\nIt is undisputed that plaintiff was injured by accident, while performing his work duties with G & G Builders, on 5 March 1992. The accident resulted in low back strain, which required hospitalization and treatment and prohibited plaintiff from working immediately after the accident. Test performed indicated that the plaintiff had \u201csome desiccation (drying of the discs) at spinal disc L4-5 with some evidence of bulging; but no herniation of the disc.\u201d\nOn 8 April 1992 the plaintiff and G & G Builders and Employers Mutual Insurance Co. (defendants) entered into an \u201cAgreement for Compensation for Disability\u201d (LG. Form 21) (hereinafter Agreement) and the Agreement was approved by the Commission on 24 April 1992. It acknowledged that the plaintiff had sustained, on 5 March 1992, an injury \u201cby accident arising out of and in the course of\u2019 his employment with G & G Builders and that he sustained a disability as a consequence of the injury. The defendants agreed to pay to the plaintiff the sum of $210.01 per week for an \u201cundetermined\u201d number of weeks. In October 1992 the defendants sent plaintiff to Dr. Lee Whitehurst (Whitehurst) for an independent medical evaluation. Plaintiff\u2019s responses during Whitehurst\u2019s examination gave Whitehurst cause to question plaintiff\u2019s credibility regarding his statements of pain. Whitehurst\u2019s tests revealed that none of the pain expressed by plaintiff seemed to be coming from any nerve involvement and there were no objective bases for plaintiff\u2019s subjective complaints of pain. Furthermore Whitehurst opined that plaintiff retained no permanent partial impairment to his back and Whitehurst released plaintiff for \u201cregular work\u201d with the restriction that plaintiff would \u201crequire help from a co-worker when lifting more than 50 to 70 pounds.\u201d Following Whitehurst\u2019s examination of plaintiff, on 29 October 1992, defendants stopped payment of temporary total disability compensation.\nAfter a hearing to contest defendants\u2019 termination of plaintiffs disability payments, held pursuant to N.C. Gen. Stat. \u00a7 97-83, the Commission found that\n9. From 29 October 1992 and continuing [thereafter] plaintiff has been capable of returning to work at his regular job with [G & G Builders], and any inability of plaintiff to be gainfully employed was not caused by the injury to his back of 5 March 1992. . . .\n\u2022 Based upon this finding, the Commission concluded that \u201cplaintiff is not entitled to any temporary total disability compensation\u201d after 20 October 1992 and that plaintiff is not entitled to any permanent partial disability compensation.\nThe dispositive issues are (I) whether the evidence supports the finding that the plaintiff is \u201ccapable of returning to work at his regular job with\u201d G & G Builders, and if so, (II) whether that finding supports the conclusion that the \u201cplaintiff is not entitled to any temporary total disability compensation\u201d after 20 October 1992.\nI\nIf the record contains any competent evidence tending to support the Commission\u2019s findings, this Court is bound by those findings. Anderson v. Lincoln Constr. Co., 265 N.C. 431, 144 S.E.2d 272 (1965). In this case there, is evidence from Dr. Whitehurst that the plaintiff was able to return to \u201cregular work\u201d after 28 October 1992 and this testimony, contrary to the argument of the plaintiff, supports the finding of the Commission that plaintiff is \u201ccapable of returning to work at his regular job.\u201d\nII\nThe plaintiff argues, in the alternative, that the Commission\u2019s finding that the plaintiff is \u201ccapable of returning to work at his regular job\u201d cannot support its conclusion that he is not disabled. A conclusion that an employee is not disabled can be sustained only if there is a finding that the employee is now capable of \u201cearning the same wages he had earned before his injury in the same [or other] employment.\u201d Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). We agree with the plaintiff that it does not necessarily follow that an employee who returns to his \u201cregular job\u201d will earn the same wages he earned before his injury. See Radica v. Carolina Mills, 113 N.C. App. 440, 447, 439 S.E.2d 185, 190 (1994) (\u201crelease to return to work is not the equivalent of a finding that the employee is able to earn the same wage earned prior to the injury\u201d). This is particularly so in this case where the plaintiff would be required to have assistance from a fellow employee \u201cwhen lifting more than 50 or 70 pounds,\u201d a restriction not in place prior to the injury. Accordingly, the conclusion that the plaintiff is not disabled is not supported in this record and the Opinion and Award must be reversed and this matter remanded to the Commission.\nIn so holding we reject the argument of the defendants that the plaintiff failed in his burden of showing that he was \u201cunable to earn the same wages he had earned before the injury, either in the same employment or in other employment.\u201d Upon the approval by the Commission of the 8 April 1992 Agreement, a presumption arose that the plaintiff was unable \u201cto work at wages equal to those he was receiving at the time his injury occurred\u201d and the burden was on the defendants to rebut this presumption. Radica, 113 N.C. App. at 447, 439 S.E.2d at 190 (quoting Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 475-76, 374 S.E.2d 483, 485 (1988)); Watkins v. Central Motor Lines, 279 N.C. 132, 137, 181 S.E.2d. 588, 592 (1971). The defendants failed to present evidence to rebut the presumption.\nThe defendants argue that this Court\u2019s opinion in Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993), requires a different result. We disagree. Although it does appear (even though this is not clear from the opinion) that a Form 21 agreement was also entered in the Russell case, the plaintiff in that case did not argue that he was entitled to a presumption of disability as a consequence of the agreement and this Court did not address that issue. Accordingly, Russell cannot be cited as authority in support of defendants\u2019 argument that the Commission\u2019s approval of a Form 21 agreement does not give rise to a presumption of disability. Russell only addresses the burdens of the parties in the context of a hearing where there has been no previous determination that the employee is disabled. In that context, the employee has the initial burden of showing that he is \u201cunable to earn the same wages he had earned before the injury, either in the same employment or in other employment.\u201d Russell, 108 N.C. App at 765, 425 S.E.2d at 457.\nOn remand the Commission must enter an award continuing benefits to the plaintiff.\nReversed and remanded.\nJudges WYNN and McGEE concur.", "type": "majority", "author": "GREENE, Judge" } ], "attorneys": [ "Brenton D. Adams for plaintiff-appellant.", "Teague, Campbell, Dennis & Gorham, by Linda Stephens and James E. R. Ratledge, for defendant-appellees." ], "corrections": "", "head_matter": "In re: ALBERT DOUGLAS STONE, Employee, Plaintiff v. G & G BUILDERS, Employer, EMPLOYERS MUTUAL INSURANCE CO., Carrier, Defendants\nNo. COA95-378\n(Filed 5 March 1996)\nWorkers\u2019 Compensation \u00a7 230 (NCI4th)\u2014 employee able to return to regular work \u2014 no conclusion that employee disabled\nEvidence from a doctor who examined plaintiff that he was able to return to \u201cregular work\u201d supported the finding of the Industrial Commission that plaintiff was capable of returning to work at his regular job; however, it did not necessarily follow that he would earn the same wages he earned before his injury, particularly since plaintiff was restricted with regard to lifting, and the conclusion that plaintiff was not disabled therefore could not be sustained.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 395-399.\nAdmissibility of opinion evidence as to employability on issue of disability in health and accident insurance and workers\u2019 compensation cases. 89 ALR3d 783.\nAppeal by plaintiff from Order and Opinion For the Full Commission entered 19 December 1994. Heard in the Court of Appeals 24 January 1996.\nBrenton D. Adams for plaintiff-appellant.\nTeague, Campbell, Dennis & Gorham, by Linda Stephens and James E. R. Ratledge, for defendant-appellees." }, "file_name": "0671-01", "first_page_order": 705, "last_page_order": 709 }