{ "id": 9250309, "name": "JOSEPH DEVLIN, JR., Employee, Plaintiff v. APPLE GOLD, INC., Employer and ZENITH INSURANCE CO., Carrier, Defendants", "name_abbreviation": "Devlin v. Apple Gold, Inc.", "decision_date": "2002-10-15", "docket_number": "No. COA01-1389", "first_page": "442", "last_page": "448", "citations": [ { "type": "official", "cite": "153 N.C. App. 442" } ], "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": "480 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "125 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. 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Stat.", "opinion_index": 0 }, { "cite": "67 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "372" } ], "opinion_index": 0 }, { "cite": "234 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623071 ], "year": 1951, "pin_cites": [ { "page": "447-48" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0446-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "684" }, { "page": "683" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "595" }, { "page": "594-95" } ], "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, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "530 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "60" }, { "page": "59-60" }, { "page": "60-61" }, { "page": "61" }, { "page": "61" } ], "opinion_index": 0 }, { "cite": "352 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685033 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "106" }, { "page": "105" }, { "page": "107" }, { "page": "108" }, { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0098-01" ] }, { "cite": "N.C. 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Stat. \u00a7 97-82", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 759, "char_count": 15068, "ocr_confidence": 0.781, "pagerank": { "raw": 9.574258384476009e-08, "percentile": 0.5257528527724975 }, "sha256": "94d140d5c8fa31a750c484cff0d9639e53fb29ff40e1711289386ea46c8d7c52", "simhash": "1:a8b0560626175954", "word_count": 2339 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge MARTIN concur." ], "parties": [ "JOSEPH DEVLIN, JR., Employee, Plaintiff v. APPLE GOLD, INC., Employer and ZENITH INSURANCE CO., Carrier, Defendants" ], "opinions": [ { "text": "THOMAS, Judge.\nPlaintiff, Joseph Devlin, Jr., appeals from an Opinion and Award of the North Carolina Industrial Commission. The Commission found he had regained wage-earning capacity and concluded he had failed to meet his burden of showing continuing disability.\nPlaintiff, however, contends his attempt at self-employment is not sufficient to show either that his wage-earning capacity is at pre-injury levels or that he has marketable skills. We reverse and remand.\nOn 18 June 1995, Devlin slipped and injured his left knee while in the course and scope of his employment with defendant Apple Gold, Inc. A claims representative for defendant Zenith Insurance Co., Apple Gold\u2019s carrier, executed a Form 63 on 13 September 1995, advising Devlin that payment of workers\u2019 compensation benefits would be made without prejudice to defendants\u2019 right to later contest the claim or their liability. Defendants did not contest either the claim or their liability within the statutory period set forth in N.C. Gen. Stat. \u00a7 97-18(d). Therefore, plaintiff\u2019s entitlement to compensation became an award of the Commission pursuant to N.C. Gen. Stat. \u00a7 97-82(b). See Shah v. Howard Johnson, 140 N.C. App. 58, 63-64, 535 S.E.2d 577, 581 (2000), disc. review denied, 353 N.C. 381, 547 S.E.2d 17 (2001); Higgins v. Michael Powell Builders, 132 N.C. App. 720, 723-24, 515 S.E.2d 17, 20 (1999). Pursuant to the executed Form 63, plaintiff received temporary total disability benefits in the amount of $370.35 per week from 12 September 1995 through 26 August 1997.\nDefendants eventually filed a Form 24 application seeking to terminate payment of compensation. It was approved by the Special Deputy Commissioner and filed on 26 August 1997. Plaintiff\u2019s temporary total disability benefits were retroactively terminated beginning 16 January 1997, which the Special Deputy Commissioner concluded to be the date plaintiff\u2019s self-employment business receipts demonstrated some wage-earning capacity.\nPlaintiff requested a hearing to contest the Commission\u2019s approval of defendants\u2019 Form 24. He also filed a claim for additional medical compensation pursuant to N.C. Gen. Stat. \u00a7 97-25.1.\nOn 17 May 1999, the matter was heard by Deputy Commissioner Wanda Blanche Taylor. She found as fact that plaintiff started a gutter and roofing business with a neighbor in November 1996 and continued to help operate it. She also found that plaintiff\u2019s trial return to work was successful and plaintiff had failed to produce evidence of his continued diminished earning capacity. She concluded:\n3. Plaintiff has not shown that he is disabled in that [he] has not shown that he does not have the capacity to earn the wages which he was earning at the time of his compensable injury; nor, has the plaintiff established a diminution in that ability.\nShe further determined plaintiff to be \u201centitled to compensation at the rate of $370.34 per week for a period of 50 weeks for his [25%] permanent partial disability of the left leg.\u201d She allowed defendants an offset for the temporary total disability benefits paid from 16 January 1997 through 25 August 1997. Finally, she concluded that defendants are liable for all medical expenses incurred by plaintiff as a result of his compensable injury, including any future medical expenses. The parties appealed.\nOn 13 June 2001, the full Commission affirmed the opinion and award of the deputy commissioner with Commissioner Bernadine S. Ballance filing a dissenting opinion. The full Commission\u2019s findings of fact included, inter alia, the following:' At the time of the hearing before the Deputy Commissioner, plaintiff was a forty-year-old male with a GED. Prior to his injury, he had worked primarily in restaurants, with brief periods of employment with IBM and driving a delivery truck. Plaintiff began working as a cook at Applebee\u2019s, a restaurant owned by defendant Apple Gold, in August 1993. Prior to his injury in June 1995, he had progressed from cook to shift supervisor to assistant general manager. On 14 November 1996, plaintiff reached maximum medical improvement and was discharged from medical treatment. He retained a twenty-five percent (25%) permanent partial disability rating to his left leg. When released from medical care, plaintiff was restricted from activities requiring climbing, working on unlevel surfaces, and scaffolding. He was advised to avoid prolonged squatting and kneeling and was told he would not be able to perform those functions on a repetitive basis.\nThe full Commission made the following further findings of fact:\n11. In November 1996, plaintiff started a gutter business, D & D Gutter and Roofing, with a neighbor. This business manufactured and installed gutters and performed some roofing. Plaintiff\u2019s wife is listed as the owner and president of the business; however, she is also employed full-time as a manager of an apartment complex. Plaintiff is the vice president of the business and responsible for talking with contractors, writing invoices, ordering materials, generating business, performing technical consultations, inspecting jobs, and making job quotes. Plaintiffs wife keeps the financial records and calculates the taxes. The company has had as many as eight employees, but generally has three or four. Plaintiff has never physically worked on the roofs or carried bundles of shingles around the job site.\n12. Plaintiff submitted business records from D & D Gutter and Roofing. However, these records did not include a complete list of checks drawn on the checking account from that business. Checks were sometimes written for personal rather than business expenses, and the personal items were not included in the submitted records. There was also evidence that plaintiff and his wife had occasionally loaned money to the business. Gross sales for 1996 (November and December) were $13,000.00 During that time, plaintiff continued to draw temporary total disability benefits at the rate of $370.35 per.week. In 1997, the gross receipts were $54,841.00 and in 1998, the gross receipts of the company were $61,725.00. Income tax returns noted that 1998 was the first year of profit. However, deductions including depreciation, bad debt and the like, affect the profitability of the company.\n13. D & D Gutter and Roofing deducts expenses for advertising, vehicles, gas, mileage, tools and equipment, materials, supplies, salaries, and consulting fees. Plaintiff\u2019s family also allocates twenty-five percent of the family\u2019s electric bill to the business as an expense. Tax records, which showed profits and losses of the company, do not accurately reflect the worth of the company and do not indicate plaintiff\u2019s actual wage earning capacity.\n19. From November 1996 and continuing, plaintiff has developed and operates a gutter and roofing business. Plaintiff has dealt with advertisers, workers, suppliers, and potential customers. Although plaintiff\u2019s business has not generated a \u201cprofit,\u201d it has generated substantial revenues due in large part to his efforts and skills. It is likely that plaintiff is compensated for his substantial contribution to the business.\n20. Plaintiff is capable of earning wages as a business manager as he has the skills to develop and operate his own business, and he held a responsible managerial position in his employment with defendant-employer.\n21. Plaintiffs return to work in his own business in November 1996 was a trial return to work, because he was under work restrictions. Plaintiff\u2019s return to work was successful, and he has not produced persuasive evidence of the extent of any continuing diminished earning capacity.\nThe Commission concluded that plaintiff had failed to meet his burden of showing continuing disability under N.C. Gen. Stat. \u00a7 97-2(9). The Commission further concluded plaintiff retained a twenty-five percent (25%) permanent partial disability to the left leg and ordered defendants to pay plaintiff $370.34 per week for fifty weeks. Defendants were allowed an offset from that amount due to its payment of temporary total disability benefits from 16 January 1997 through 25 August 1997.\nCommissioner Ballance dissented from the majority opinion, stating there was insufficient evidence of (1) plaintiff having adequate skills as a manager to obtain work in the general marketplace, or (2) plaintiff being capable of earning wages equal to or greater than his pre-injury wages.\nIn reviewing an opinion and award of the Industrial Commission, this Court is bound by the Commission\u2019s findings of fact when supported by any competent evidence, but the Commission\u2019s legal conclusions are fully reviewable. See Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 106, 530 S.E.2d 54, 60 (2000). This Court does not weigh the evidence and decide the issue on the basis of its weight; rather, this Court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding. See Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965). If the findings of the Commission are insufficient to determine the rights of the parties, this Court may remand to the Industrial Commission for additional findings. See Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982).\nThe Workers\u2019 Compensation Act defines \u201cdisability\u201d as the \u201cincapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment.\u201d N.C. Gen. Stat. \u00a7 97-2(9) (2001). \u201cCompensation must be based upon loss of wage-earning power rather than the amount actually received.\u201d Hill v. DuBose, 234 N.C. 446, 447-48, 67 S.E.2d 371, 372 (1951). If wage-earning power is only diminished, the employee is entitled to benefits under N.C. Gen. Stat. \u00a7 97-30. Gupton v. Builders Transport, 320 N.C. 38, 42, 357 S.E.2d 674, 678 (1987). If wage-earning power is totally obliterated, the employee may recover under N.C. Gen. Stat. \u00a7 97-29. Id. \u201cThe focus of this determination is not on \u2018whether all or some persons with plaintiff\u2019s degree of injury are capable of working and earning wages, but whether plaintiff [him]self has such capacity.\u2019 \u201d Lanning, 352 N.C. at 105, 530 S.E.2d at 59-60 (quoting Little v. Anson County Sch. Food Serv., 295 N.C. 527, 531, 246 S.E.2d 743, 746 (1978)). The earning capacity of an injured employee must be evaluated \u201cby the employee\u2019s own ability to compete in the labor market. If post-injury earnings do not reflect this ability to compete with others for wages, they are not a proper measure of earning capacity.\u201d Peoples v. Cone Mills Corp., 316 N.C. 426, 437, 342 S.E.2d 798, 805-06 (1986). The employee\u2019s age, education, and work experience are factors to be considered in determining the person\u2019s capacity to earn wages. Little v. Anson County Sch. Food Serv., 295 N.C. 527, 532, 246 S.E.2d 743, 746 (1978).\nIn Banning, the Supreme Court addressed when an injured employee\u2019s earnings from self-employment can support a finding of wage-earning capacity. The Court stated:\nWhile an employee\u2019s management skills may be significant in the operation of certain businesses .. . different skills may be relevant to and necessary for the operation of other types of personal businesses. The determinative issue is whether the skills\u2014 be they management, computer, accounting, sales, consulting, or something else \u2014 utilized by the employee in the active operation of his own business, when considered in conjunction with the employee\u2019s impairment, age, education, and experience, would enable the employee to compete in the labor market. See Peoples, 316 N.C. at 438, 342 S.E.2d at 806. We hold, therefore, that the test for determining whether the self-employed injured employee has wage-earning capacity is that the employee (i) be actively involved in the day to day operation of the business and (ii) utilize skills which would enable the employee to be employable in the competitive market place not withstanding the employee\u2019s physical limitations, age, education and experience.\nLanning, 352 N.C. at 107, 530 S.E.2d at 60-61; see also McGee v. Estes Express Lines, 125 N.C. App. 298, 480 S.E.2d 416 (1997).\nThe determination of whether a disability exists is a conclusion of law that must be based upon findings of fact supported by competent evidence. Hilliard, 305 N.C. at 594-95, 290 S.E.2d at 683. However, \u201c[w]hether plaintiffs management skills are marketable and whether plaintiff is actively involved in the business\u2019 personal management are questions of fact\u201d to be determined by the Commission. Lanning, 352 N.C. at 108, 530 S.E.2d at 61.\nHere, the Commission found as fact that plaintiff was vice president of the gutter and roofing business and \u201cresponsible for talking with contractors, writing invoices, ordering materials, generating business, performing technical consultations, inspecting jobs, and making job quotes.\u201d This is akin to a finding that plaintiff was actively involved in the day to day operation of the business. However, the Commission made no finding that plaintiffs management skills are competitively marketable in light of his physical limitations, age, education and experience. Further, the Commission made no determination of whether plaintiffs wage-earning capacity was equal to or greater than his pre-injury wage-earning capacity. The Commission simply found that plaintiff\u2019s business had generated substantial revenues due in large part to his efforts and skills, that plaintiff was likely being compensated, and that he \u201chad some wage-earning capacity.\u201d The Commission\u2019s findings are insufficient to determine plaintiff\u2019s actual wage-earning capacity.\nSince the Commission failed to make findings necessary to determine plaintiff\u2019s actual wage-earning capacity and the rights of the parties, we reverse the Commission\u2019s opinion and award. We remand to the Commission for findings consistent with the legal principles stated in this opinion. See Lanning, 352 N.C. at 109, 530 S.E.2d at 61.\nReversed and remanded.\nChief Judge EAGLES and Judge MARTIN concur.", "type": "majority", "author": "THOMAS, Judge." } ], "attorneys": [ "The Law Office of Leslie O. Wickham, Jr., by Mark H. Woltz,for plaintiff-appellant.", "Morris York Williams Surles & Barringer, LLP, by Kim E. Taylor, for defendant-appellees." ], "corrections": "", "head_matter": "JOSEPH DEVLIN, JR., Employee, Plaintiff v. APPLE GOLD, INC., Employer and ZENITH INSURANCE CO., Carrier, Defendants\nNo. COA01-1389\n(Filed 15 October 2002)\nWorkers\u2019 Compensation\u2014 wage-earning capacity \u2014 continuing disability \u2014 earnings from self-employment\nThe Industrial Commission erred in a workers\u2019 compensation case by finding that plaintiff employee had regained his wage-earning capacity and by concluding that plaintiff failed to meet his burden of showing continuing disability under N.C.G.S. \u00a7 97-2(9) based on plaintiffs earnings from self-employment, because the Commission\u2019s findings are insufficient to determine plaintiff\u2019s actual wage-earning capacity.\nAppeal by plaintiff from opinion and award entered 13 June 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17 September 2002.\nThe Law Office of Leslie O. Wickham, Jr., by Mark H. Woltz,for plaintiff-appellant.\nMorris York Williams Surles & Barringer, LLP, by Kim E. Taylor, for defendant-appellees." }, "file_name": "0442-01", "first_page_order": 472, "last_page_order": 478 }