{ "id": 9440771, "name": "LEONARD LARRAMORE, Employee, Plaintiff-Appellee v. RICHARDSON SPORTS LIMITED PARTNERS, d/b/a CAROLINA PANTHERS, Employer, and LEGION INSURANCE COMPANY, Carrier, Defendant-Appellants", "name_abbreviation": "Larramore v. Richardson Sports Ltd. Partners", "decision_date": "2000-12-29", "docket_number": "No. COA99-1578", "first_page": "250", "last_page": "262", "citations": [ { "type": "official", "cite": "141 N.C. App. 250" } ], "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": "264 S.E.2d 56", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "60", "parenthetical": "citations omitted" }, { "page": "63" } ], "opinion_index": 0 }, { "cite": "299 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575647 ], "year": 1980, "pin_cites": [ { "page": "586", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0582-01" ] }, { "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": "532 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "588", "parenthetical": "quoting Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)" }, { "page": "588", "parenthetical": "post-injury earnings from delivering automobiles competent evidence of earning capacity where employer presented no evidence that claimant could obtain employment with higher earnings" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496002 ], "year": 2000, "pin_cites": [ { "page": "131", "parenthetical": "quoting Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0123-01" ] }, { "cite": "534 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "139 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497249 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/139/0553-01" ] }, { "cite": "415 S.E.2d 86", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "89", "parenthetical": "\"Insofar as the Commission in this case failed to address whether plaintiff requested a change of physician within a reasonable time, we remand this matter to the Commission for further findings on this issue.\"" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313428 ], "year": 1992, "pin_cites": [ { "page": "7", "parenthetical": "\"Insofar as the Commission in this case failed to address whether plaintiff requested a change of physician within a reasonable time, we remand this matter to the Commission for further findings on this issue.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0001-01" ] }, { "cite": "523 S.E.2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "444", "parenthetical": "citation omitted" }, { "page": "444", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238626 ], "year": 1999, "pin_cites": [ { "page": "152", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0144-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "527 S.E.2d 344", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "348", "parenthetical": "citation omitted" }, { "page": "348" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11091829 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "55", "parenthetical": "citation omitted" }, { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0051-01" ] }, { "cite": "482 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "37", "parenthetical": "\"Circumstantial evidence of the causal connection between the occupation and the disease is sufficient.\"" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 643", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11870878 ], "year": 1997, "pin_cites": [ { "page": "647", "parenthetical": "\"Circumstantial evidence of the causal connection between the occupation and the disease is sufficient.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0643-01" ] }, { "cite": "450 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "513", "parenthetical": "\"due to the unique nature of [plaintiff's] employment, it is difficult to make a precise calculation of his income, and the Commission was therefore justified in resorting to an alternative method of determining his average weekly wage as provided by G. S. \u00a7 97-2(5).\"" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 261", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525058 ], "year": 1994, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0261-01" ] }, { "cite": "489 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "347 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551278 ], "year": 1997, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0126-01" ] }, { "cite": "536 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132002, 132066, 132165, 132198, 132147 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0379-05", "/nc/350/0379-04", "/nc/350/0379-02", "/nc/350/0379-01", "/nc/350/0379-03" ] }, { "cite": "509 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "803" }, { "page": "803" }, { "page": "803" }, { "page": "863-64" }, { "page": "803-804" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 859", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11206897 ], "year": 1998, "pin_cites": [ { "page": "861-62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0859-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "352 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684995, 685061, 685094, 685032, 684918 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0674-05", "/nc/352/0674-01", "/nc/352/0674-03", "/nc/352/0674-04", "/nc/352/0674-02" ] }, { "cite": "283 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "104" } ], "opinion_index": 0 }, { "cite": "304 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565283 ], "year": 1981, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0044-01" ] }, { "cite": "533 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 352", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496734 ], "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0352-01" ] }, { "cite": "535 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "604", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122648 ], "year": 2000, "pin_cites": [ { "page": "132-33", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0130-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "683" } ], "opinion_index": 1 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "473 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "405" } ], "opinion_index": 1 }, { "cite": "123 N.C. App. 476", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913783 ], "year": 1996, "pin_cites": [ { "page": "478" } ], "opinion_index": 1, "case_paths": [ "/nc-app/123/0476-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457" } ], "opinion_index": 1 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "year": 1993, "pin_cites": [ { "page": "765" } ], "opinion_index": 1, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "532 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "585", "parenthetical": "appellate review of Commission's findings of fact is limited to whether findings of fact are supported by competent evidence" } ], "opinion_index": 1 }, { "cite": "139 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496002 ], "year": 2000, "pin_cites": [ { "page": "126", "parenthetical": "appellate review of Commission's findings of fact is limited to whether findings of fact are supported by competent evidence" } ], "opinion_index": 1, "case_paths": [ "/nc-app/139/0123-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(5)" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 1 } ], "analysis": { "cardinality": 917, "char_count": 27305, "ocr_confidence": 0.748, "pagerank": { "raw": 4.2549691387313005e-07, "percentile": 0.9151913876059956 }, "sha256": "1d616d9f81450e46ad2b913496e280ee1a5a17a99966b0cbb95fbca39bdefc16", "simhash": "1:83ac4ddaf9686a84", "word_count": 4218 }, "last_updated": "2023-07-14T21:28:13.659098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge GREENE dissents." ], "parties": [ "LEONARD LARRAMORE, Employee, Plaintiff-Appellee v. RICHARDSON SPORTS LIMITED PARTNERS, d/b/a CAROLINA PANTHERS, Employer, and LEGION INSURANCE COMPANY, Carrier, Defendant-Appellants" ], "opinions": [ { "text": "FULLER, Judge.\nDefendant Richardson Sports Limited Partners, d/b/a Carolina Panthers, and Legion Insurance Company appeal an order and award of the Industrial Commission awarding plaintiff Leonard Larramore temporary partial disability compensation, temporary permanent disability compensation, and reimbursement for medical expenses.\nOn 27 April 1995 plaintiff signed a contract with the Carolina Panthers professional football team to play football during the Panthers\u2019 1995-96 season. The contract provided for a $1,000.00 signing bonus and a salary of $85,000.00 for the period 27 April 1995 to 28 February 1996. The contract further specified that plaintiff was not entitled to the contract amount until plaintiff was officially added to the Panthers\u2019 active roster. Under the standard National Football League players contract which constituted part of the agreement, in the event plaintiff was injured during the professional season and could not play for the remainder of the year, the contract specified that plaintiff would still receive the full contract amount. The contract expressly provided the Panthers with discretion to unilaterally terminate plaintiff if his football skills were unsatisfactory.\nPrior to a determination of which players would make the active roster, contract players, including plaintiff, participated in pre-season football camps for which they were paid a per diem amount for expenses and work performed. Plaintiff participated in such a camp lasting from 30 May 1995 to 9 June 1995. However, on 8 June 1995 plaintiff injured his back when he slipped and fell during practice. Plaintiff was excused from the final day of the camp, and he returned home to Jacksonville, Florida.\nOn 14 July 1995 plaintiff again reported to the Panthers\u2019 training camp where team doctor Donald D\u2019Alessandro performed a preseason physical on plaintiff. Dr. D\u2019Alessandro noted that plaintiff\u2019s lumbar strain had begun to resolve, and he released plaintiff for practice. The following day, 15 July 1995, Panthers management cut the team roster, and various contract players were excused from the team without having made the active roster. Plaintiff was one of the players excused from employment. Upon plaintiff\u2019s dismissal, Dr. D\u2019Alessandro performed an exit examination on plaintiff and recommended plaintiff rest his lower back and consult a spine surgeon should he experience continued symptoms.\nPlaintiff returned to Jacksonville, and on 4 August 1995 plaintiff was examined by orthopaedist Fady El-Bahri. Dr. El-Bahri performed an MRI on plaintiff which revealed slight disc herniations and evidence of degenerative disc disease. Dr. El-Bahri recommended plaintiff undergo conservative treatments of physical therapy, nerve studies, and epidural injections for two to three months. Plaintiff submitted Dr. El-Bahri\u2019s bill to the Panthers\u2019 team trainer, but defendants refused to pay.\nPlaintiff returned to Dr. El-Bahri on 25 July 1996 complaining of increased pain and constant numbness and tingling in both legs. Dr. El-Bahri diagnosed plaintiff as having a \u201cbilateral sacroiliac joint sprain,\u201d and recommended plaintiff undergo a microdiscectomy.\nFollowing his dismissal from the Panthers, plaintiff did not obtain any other employment in football for the 1995-96 season. Plaintiff received unemployment assistance for approximately three months until beginning work as a teacher\u2019s assistant. Plaintiff also worked as a temporary service employee. Plaintiff tried out for a player position with the Dallas Cowboys in January 1997, but was not selected for the team.\nIn an opinion and award filed 4 August 1999, the Full Commission concluded plaintiff suffered a compensable injury when he fell and injured his back during practice on 8 June 1995. The Commission determined plaintiff was temporarily totally disabled from 9 June 1995 through 14 July 1995. The Commission calculated plaintiff\u2019s average weekly wage as $1,653.85, yielding a weekly compensation rate of $478.00, minus appropriate credits to defendants. The Commission further concluded plaintiff was entitled to temporary partial disability from 8 June 1995 to the time of the order, for a total of 300 weeks, at a rate two-thirds of the difference between $1,653.85 and plaintiffs post-injury wages. Defendants were additionally ordered to reimburse plaintiff for expenses incurred or to be incurred for treatment by Dr. El-Bahri. Defendants appeal.\nDefendants bring forth three assignments of error on appeal: (1) the Commission erred in determining plaintiff\u2019s average weekly wage as $1,653.85, yielding a maximum compensation rate of $478.00; (2) the Commission erred in awarding plaintiff payment for medical expenses incurred or to be incurred for plaintiffs treatment by Dr. El-Bahri; and (3) the Commission erred in awarding plaintiff temporary partial disability compensation under N.C. Gen. Stat. \u00a7 97-30 (1999).\nIt is well-established that our standard of review of an opinion and award of the Commission is limited to a determination of \u201c(1) whether the Commission\u2019s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission\u2019s findings justify its conclusions of law.\u201d Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000) (citation omitted). \u201c \u2018[T]he Industrial Commission is the fact finding body and . . . the findings of fact made by the Commission are conclusive on appeal,... if supported by competent evidence.... This is so even though there is evidence which would support a finding to the contrary.\u2019 \u201d Hunter v. Perquimans County Bd. of Educ., 139 N.C. App. 352, 355, 533 S.E.2d 562, 564, (quoting Hansel v. Sherman Textiles, 304 N.C. 44, 49, 283 S.E.2d 101, 104 (1981)), cert. denied, 352 N.C. 674, - S.E.2d -, No. 415P00 (N.C. Supreme Court 6 Oct. 2000).\nI.\nBy their first assignment of error, defendants allege the Commission erred in determining plaintiff\u2019s average weekly wage under the Worker\u2019s Compensation Act to be $1,653.85. N.C. Gen. Stat. \u00a7 97-2(5) (1999) defines \u201caverage weekly wage\u201d and enumerates procedures for its computation:\n\u2018Average weekly wages\u2019 shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury. . . . Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both parties will be thereby obtained .... But where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.\nG.S. \u00a7 97-2(5) (Emphasis added).\nThe Commission concluded that, given the circumstances and short duration of plaintiff\u2019s employment, it was appropriate \u201cto resort to such other method of computing average weekly wages as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.\u201d Pursuant to G.S. \u00a7 97-2(5), the Commission determined this method would be to add the contract amount of $85,000.00 and the $1,000.00 signing bonus, and divide the total by fifty-two weeks, yielding an average weekly wage of $1,653.85.\nDefendants first argue that the Commission\u2019s conclusion was erroneous in that the Commission should not have used the final \u201cexceptional reasons\u201d method of calculating plaintiff\u2019s average weekly wage. Specifically, defendants contend no such exceptional circumstances existed to permit the use of an alternative method.\nThis Court addressed an identical argument in Hendricks v. Hill Realty Group, Inc., 131 N.C. App. 859, 861-62, 509 S.E.2d 801, 803 (1998), disc. review denied, 350 N.C. 379, 536 S.E.2d 73 (1999). The appellant in Hendricks argued there was insufficient evidence of exceptional circumstances to justify the Commission\u2019s use of an alternative method to determining average weekly wages. Id. In upholding the Commission\u2019s use of an alternative method, this Court noted that \u201c[t]he intent of [G. S. \u00a7 97-2(5)] is to make certain that the results reached are fair and just to both parties. . . . \u2018Ordinarily, whether such results will be obtained ... is a question of fact; and in such case a finding of fact by the Commission controls the decision.\u2019 \u201d Id. at 862, 509 S.E.2d at 803 (quoting McAninch v. Buncombe County Schools, 347 N.C. 126, 130, 489 S.E.2d 375, 378 (1997)).\nThe Commission in Hendricks determined that an \u201cexceptional reasons\u201d approach was \u201c \u2018the only method which is fair and which would result in a calculation of decedent\u2019s average weekly wage which most nearly approximates the amount of wages she would be earning were it not for her injury and resulting death.\u2019 \u201d Id. at 863, 509 S.E.2d at 803. Finding competent evidence to support this finding, this Court held the Commission\u2019s determination binding on appeal. Id. at 863-64, 509 S.E.2d 801, 803-804.\nIn the present case, the Commission likewise concluded that under the circumstances, the only appropriate method, and that which would \u201cmost nearly approximate the amount which the injured employee would be earning were it not for the injury,\u201d would be to divide plaintiff\u2019s $86,000.00 contract amount by fifty-two. We hold this determination to be supported by at least some competent evidence in the record, and thus, binding upon this Court. Plaintiff\u2019s contract and the circumstances of this appeal are indeed exceptional, and we therefore will not substitute our judgment for that of the Commission. See, e.g., Christian v. Riddle & Mendenhall Logging, 117 N.C. App. 261, 264, 450 S.E.2d 510, 513 (1994) (\u201cdue to the unique nature of [plaintiff\u2019s] employment, it is difficult to make a precise calculation of his income, and the Commission was therefore justified in resorting to an alternative method of determining his average weekly wage as provided by G. S. \u00a7 97-2(5).\u201d).\nDefendants further argue that the Commission\u2019s computation of plaintiff\u2019s average weekly wage is erroneous because it was based on an unsupported finding of fact. Defendants assert the computation was based on the Commission\u2019s finding that the \u201creasonable inference from the facts is that, but for plaintiff\u2019s injury, plaintiff would have played for the Carolina Panthers during the contract year and would have earned the contract pay of $85,000.00 plus a $1,000.00 signing bonus.\u201d Defendants contend this finding was not supported by any competent evidence, and thus, the conclusion that plaintiff\u2019s average weekly wage is $1,653.85 was unsupported.\nWe acknowledge as true defendants\u2019 argument that the record does not contain direct evidence establishing to a certainty that, but for plaintiff\u2019s injury, he would have made the Panthers\u2019 active roster. However, just as the Commission is entitled to use circumstantial evidence in determining the existence of a causal link between an injury and a worker\u2019s employment, we believe the Commission is entitled to the use of circumstantial evidence here. See Brafford v. Brafford\u2019s Construction Co., 125 N.C. App. 643, 647, 482 S.E.2d 34, 37 (1997) (\u201cCircumstantial evidence of the causal connection between the occupation and the disease is sufficient.\u201d).\nThe record here contains circumstantial evidence which could lead to an inference that plaintiffs injury caused his dismissal from the Panthers. The Commission made findings of fact, which are supported by the record, that plaintiff played semi-professional football after college, and that one year later, plaintiff was signed to play for the Buffalo Bills professional football team. Plaintiff suffered an ankle injury while with the Buffalo Bills, and he was placed on an inactive roster. Moreover, the Commission found that once dismissed from the second pre-season training camp on 8 June 1995, plaintiff was given a conditioning goal of weight loss to 300 pounds by the next camp. Although the Commission made no specific findings, record evidence suggests plaintiff was unable to meet this weight loss goal due to an inability to perform proper conditioning.\nWhile this Court may disagree with the inference which the Commission drew, the determination of whether, but for his injury, plaintiff would have continued in his employment with the Panthers is a question of fact most appropriately resolved by the Commission. See, e.g., Young v. Hickory Bus. Furn., 137 N.C. App. 51, 55, 527 S.E.2d 344, 348 (2000) (citation omitted) (Commission vested \u201cwith full authority to find the essential facts in a workers\u2019 compensation case... and it is the responsibility of the Commission, not the reviewing court, to weigh the evidence of causation and to assess its credibility.\u201d). Given the circumstantial evidence present in the record, we decline to substitute our judgment for that of the Commission, and we therefore uphold its finding that plaintiffs injury prevented him from maintaining his employment with the Panthers. This assignment of error is overruled.\nII.\nBy their second assignment of error, defendants argue the Commission erroneously award\u00e9d plaintiff payment for medical expenses incurred or to be incurred for plaintiffs treatment by Dr. El-Bahri. Specifically, defendants assert plaintiff failed to request the Commission\u2019s approval for treatment by Dr. El-Bahri within a reasonable time, and the Commission failed to make any relevant findings on the issue.\nUnder the Worker\u2019s Compensation Act, an injured employee has the right to procure his own physician so long as the Commission approves such treatment. N.C. Gen. Stat. \u00a7 97-25 (1999); Schofield v. Tea Co., 299 N.C. 582, 586, 264 S.E.2d 56, 60 (1980) (citations omitted). A request for the Commission\u2019s approval must be made within a reasonable time after the employee seeks the treatment. Schofield, at 593, 264 S.E.2d at 63. The Commission is required to make specific findings as to whether the employee requested approval within a reasonable time. Scurlock v. Durham County Gen. Hosp., 136 N.C. App. 144, 152, 523 S.E.2d 439, 444 (1999) (citation omitted).\nIn Scurlock, this Court observed that the Commission\u2019s failure to make findings as to the reasonableness of the time within which a request for treatment approval is made constitutes grounds for remand on the issue:\nHere, plaintiff began seeing Dr. Scott in June of 1991, but made no specific request for authorization with the Commission until 15 August 1994, more than three years after her visits began. Though we profess doubts as to how a three-year delay could be reasonable, ultimately this is not for us to determine. Rather, the Industrial Commission must make specific findings as to whether approval was sought within a reasonable time after her treatments with Dr. Scott began. The Full Commission made no such findings here, requiring a remand for that determination.\nId. at 152, 523 S.E.2d at 444 (citations omitted); see also, Braswell v. Pitt County Mem. Hosp., 106 N.C. App. 1, 7, 415 S.E.2d 86, 89 (1992) (\u201cInsofar as the Commission in this case failed to address whether plaintiff requested a change of physician within a reasonable time, we remand this matter to the Commission for further findings on this issue.\u201d).\nClearly, the decision as to whether plaintiff in this case requested treatment approval within a reasonable time under the circumstances is within the sole province of the Commission. While the Commission determined plaintiff\u2019s treatment by Dr. El-Bahri to be reasonably necessary, the order of the Commission lacks any finding as to the reasonableness of the time frame within which plaintiff requested any such approval. While plaintiffs request may have been reasonably timely in light of defendants\u2019 protracted denial of the Commission\u2019s jurisdiction over this matter, only the Commission may make such findings. We therefore remand this issue to the Commission to make proper findings as to whether plaintiff requested approval of Dr. El-Bahri\u2019s treatment in a reasonably timely fashion as required by statute.\nIII.\nDefendants\u2019 third and final assignment of error alleges the Commission erred in awarding plaintiff temporary partial disability compensation under G.S. \u00a7 97-30. Defendants contend plaintiff failed to meet his burden of establishing his disability past 14 July 1995. While defendants correctly assert that the record contains competent evidence tending to support a conclusion that plaintiff was not disabled for the length of time determined by the Commission, we must defer to the Commission\u2019s finding of disability where supported by any competent evidence in the record. See, e.g., Dancy v. Abbott Labs., 139 N.C. App. 553, 534 S.E.2d 601 (2000).\nThis Court recently noted that an injured employee is disabled for purposes of the Worker\u2019s Compensation Act if the injury results in an \u201c \u2018incapacity... to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u2019 \u201d Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 131, 532 S.E.2d 583, 588 (2000) (quoting Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)). Thus, disability under the Act is defined as \u201c \u2018the impairment of the injured employee\u2019s earning capacity rather than physical disablement.\u2019 \u201d Id. (quoting Russell, 108 N.C. App. at 765, 425 S.E.2d at 457). The Bond court further observed that an injured employee may establish disability by producing evidence that he has obtained other employment at a wage less than that earned prior to the injury. Id.\nIn the present case, there is evidence in the record which would support a conclusion that plaintiff\u2019s injury resulted in the loss of his wage-earning capacity. We have previously upheld as supported by competent evidence the Commission\u2019s determination that, but for his injury, plaintiff would have received the Panthers contract amount of $86,000.00. The Commission also found plaintiff was unable to obtain other professional football employment for the remainder of the 1995-96 season. Plaintiff attempted similar employment with the Dallas Cowboys in January 1997, but was not selected for the team.\nRather, the Commission found, and the record supports, that subsequent to his injury and dismissal from the Panthers, plaintiff performed various low-paying jobs, including work as a teacher\u2019s assistant at the pay rate of $6.50 per hour, and as a temporary service employee at the rate of $8.10 per hour. Such evidence, while not dis-positive of disability, shifts the burden to the employer to establish that the employee could have obtained higher earnings. Bond, 139 N.C. App. at 131, 532 S.E.2d at 588 (post-injury earnings from delivering automobiles competent evidence of earning capacity where employer presented no evidence that claimant could obtain employment with higher earnings). Defendants made no such showing. Moreover, although defendants argue that no doctor expressly prohibited plaintiff from playing professional football, all three of plaintiffs treating physicians noted that a symptomatic disc would contraindicate plaintiffs playing professional football. Indeed, on 25 July 1996, Dr. El-Bahri diagnosed plaintiff as suffering from \u201ca bilateral sacroiliac joint sprain\u201d for which Dr. El-Bahri sought to perform a microdiscectomy on plaintiff.\nAgain, while the judgment of this Court may differ from that of the Commission, it is the Commission that is wholly vested with authority to find the essential facts, weigh the evidence, and assess its credibility. Young, 137 N.C. App. at 55, 527 S.E.2d at 348. The record contains some competent evidence which would support the Commission\u2019s conclusion that plaintiff was entitled to temporary partial disability, and we therefore will not disturb this determination on appeal.\nThe order of the Commission awarding plaintiff disability compensation is hereby affirmed; this matter is remanded to the Commission for further findings as to whether plaintiff\u2019s request for approval for treatment by Dr. El-Bahri was reasonably timely.\nAffirmed in part, reversed and remanded in part.\nJudge TIMMONS-GOODSON concurs.\nJudge GREENE dissents.", "type": "majority", "author": "FULLER, Judge." }, { "text": "Judge Greene\ndissenting.\nI disagree with the majority that plaintiff met his burden of proving a \u201ctemporary partial disability\u201d within the meaning of the Workers\u2019 Compensation Act. I, therefore, dissent.\n\u201cThe term \u2018disability\u2019 means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u201d N.C.G.S. \u00a7 97-2(9) (1999). Disability refers to \u201ca diminished capacity to earn money rather than physical infirmity.\u201d Arrington v. Texfi Indus., 123 N.C. App. 476, 478, 473 S.E.2d 403, 405 (1996). To establish a disability, a claimant must prove:\n(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that [plaintiffs] incapacity to earn was caused by [his] injury.\nHilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). A plaintiff may meet this burden by producing \u201cevidence that he has obtained other employment at a wage less than that earned prior to the injury.\u201d Russell v. Lowes Pro. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993).\nIn this case, the Commission concluded \u201cplaintiff is entitled to temporary partial disability compensation for the period from June 8, 1995, to the present and continuing for a total of 300 weeks.\u201d The Commission made findings of fact regarding the wages earned by plaintiff subsequent to his injury; however, the Commission did not make any findings of fact comparing plaintiffs post-injury wages to any pre-injury wages. The Commission\u2019s findings of fact, therefore, do not support a conclusion that plaintiff was disabled under the Workers\u2019 Compensation Act due to his inability to earn after his injury \u201cthe same wages he had earned before his injury in the same employment . . . [or] any other employment.\u201d Accordingly, I would reverse the opinion and award of the Commission.\nEven assuming plaintiff is disabled under the Workers\u2019 Compensation Act, I disagree with the majority that the record contains competent evidence to support the trial court\u2019s finding of fact that \u201cbut for plaintiffs injury, plaintiff would have played for the Carolina Panthers during the contract year and would have earned the contract pay of $85,000.00 plus a $1,000.00 signing bonus.\u201d The record shows plaintiff would have earned the contract pay of $85,000.00 only if plaintiff was officially added to the active roster of the Carolina Panthers. Plaintiff, however, was excused from the team without having made the active roster. There is no evidence in the record that plaintiff was excused as a result of his injury. Evidence of plaintiffs prior employment record as a professional football player and his attendance at the pre-season training camp of the Carolina Panthers is not \u201ccircumstantial evidence which could lead to an inference that plaintiff\u2019s injury caused his dismissal from the Panthers.\u201d I, therefore, would hold the Commission\u2019s finding of fact that \u201cbut for plaintiff\u2019s injury, plaintiff would have played for the Carolina Panthers during the contract year and would have earned the contract pay of $85,000.00 plus a $1,000.00 signing bonus\u201d is not supported by competent evidence in the record. See Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 126, 532 S.E.2d 583, 585 (2000) (appellate review of Commission\u2019s findings of fact is limited to whether findings of fact are supported by competent evidence). Accordingly, the Commission erroneously relied on this finding of fact when computing the amount of plaintiff\u2019s compensation under N.C. Gen. Stat. \u00a7 97-2(5) and N.C. Gen. Stat. \u00a7 97-30.", "type": "dissent", "author": "Judge Greene" } ], "attorneys": [ "Lore & McClearen, by R. James Lore for plaintiff-appellee.", "Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Hatcher Kincheloe and Sharon E. Dent for defendant-appellants." ], "corrections": "", "head_matter": "LEONARD LARRAMORE, Employee, Plaintiff-Appellee v. RICHARDSON SPORTS LIMITED PARTNERS, d/b/a CAROLINA PANTHERS, Employer, and LEGION INSURANCE COMPANY, Carrier, Defendant-Appellants\nNo. COA99-1578\n(Filed 29 December 2000)\n1. Workers\u2019 Compensation\u2014 average weekly wage \u2014 football player\nThe Industrial Commission did not err in a Workers\u2019 Compensation action in its determination of the average weekly wage of a professional football player where plaintiff signed a contract which provided a signing bonus of $1,000 and a salary of $85,000 for the period 27 April 1995 to 28 February 1996; the contract specified that plaintiff was not entitled to the contract amount until he was added to the active roster; plaintiff was injured during the preseason camp and was not added to the roster; and the Commission computed plaintiff\u2019s average weekly wage by adding the signing bonus and contract amount and dividing by 52 weeks. At least some competent evidence supported the Commission\u2019s conclusion that this method was the only appropriate method under the circumstances and would most nearly approximate the amount the injured employee would be earning were it not for the injury.\n2. Workers\u2019 Compensation\u2014 football player \u2014 continued employment without injury \u2014 question of fact for Commission\nAn Industrial Commission finding of fact in a workers\u2019 compensation action that plaintiff-football player would have played for the Carolina Panthers during his contract year but for his injury was supported by circumstantial evidence in the record. The determination of whether plaintiff would have continued in his employment is a question of fact most appropriately resolved by the Industrial Commission.\n3. Workers\u2019 Compensation\u2014 medical treatment \u2014 request for approval \u2014 time frame\nAn Industrial Commission award for medical expenses in a workers\u2019 compensation action was remanded where the Commission\u2019s order lacked any finding as to the reasonableness of the time frame within which plaintiff requested treatment approval.\n4. Workers\u2019 Compensation\u2014 temporary partial disability\u2014 football player\nThere was evidence in the record in a workers\u2019 compensation action to support the Industrial Commission\u2019s conclusion that plaintiff-football player was entitled to temporary partial disability where there was evidence to support the conclusion that his injury resulted in loss of his wage earning capacity; that evidence shifted the burden to the employer to establish that the employee could have obtained higher earnings; defendants made no such showing; and, while no doctor expressly prohibited plaintiff from playing professional football, plaintiff\u2019s treating physicians noted that a symptomatic disc would contraindicate playing professional football.\nJudge Greene dissenting.\nAppeal by defendants from opinion and award entered 4 August 1999 by the North Carolina Industrial Commission. Heard in the Court of Appeals 7 November 2000.\nLore & McClearen, by R. James Lore for plaintiff-appellee.\nHedrick, Eatman, Gardner & Kincheloe, L.L.P., by Hatcher Kincheloe and Sharon E. Dent for defendant-appellants." }, "file_name": "0250-01", "first_page_order": 280, "last_page_order": 292 }