{ "id": 9185835, "name": "RONALD C. COX, Employee, Plaintiff v. CITY OF WINSTON-SALEM, Employer, SELF-INSURED, Defendant", "name_abbreviation": "Cox v. City of Winston-Salem", "decision_date": "2003-04-15", "docket_number": "No. COA02-370", "first_page": "228", "last_page": "239", "citations": [ { "type": "official", "cite": "157 N.C. App. 228" } ], "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": "N.C. Gen. Stat. \u00a7 97-86.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 0 }, { "cite": "286 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. 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Stat.", "weight": 5, "pin_cites": [ { "page": "(6)" }, { "page": "(5)" }, { "page": "(9)" }, { "page": "(5)" }, { "page": "(5)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 958, "char_count": 27066, "ocr_confidence": 0.771, "pagerank": { "raw": 1.7362571226836808e-07, "percentile": 0.7063108698615247 }, "sha256": "02bc1eb6d354e4f0109a742411c50cd3004805c30f1de4900549a1df7b5ae89c", "simhash": "1:a809694abe5b5690", "word_count": 4283 }, "last_updated": "2023-07-14T16:54:20.581695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and CALABRIA concur." ], "parties": [ "RONALD C. COX, Employee, Plaintiff v. CITY OF WINSTON-SALEM, Employer, SELF-INSURED, Defendant" ], "opinions": [ { "text": "HUNTER, Judge.\nThe City of Winston-Salem (\u201cdefendant\u201d) appeals from the Industrial Commission\u2019s (\u201cthe Commission\u201d) opinion and award granting Ronald C. Cox (\u201cplaintiff\u201d) temporary total disability benefits. Defendant challenges the Commission\u2019s award of benefits and claims the Commission erred in calculating plaintiff\u2019s average weekly wage. Plaintiff also appeals, challenging the Commission\u2019s decision to grant defendant a credit for the long-term disability retirement benefits paid and to be paid to plaintiff until plaintiff reaches age sixty-five. Plaintiff additionally assigns error to the Commission\u2019s denial of his motion for an award of attorney\u2019s fees and his motion for interest on the compensation award from the date of the original hearing. For the reasons set forth herein, we affirm in part and remand in part.\nThis claim arises from injuries plaintiff sustained when he fell into an open manhole on the night of 31 August 1998, while performing his job duties as a wastewater pump mechanic for defendant. The day after the fall, plaintiff was diagnosed with multiple contusions and restricted to no repetitive use of his right arm and shoulder. However, plaintiff immediately returned to work. By 9 September 1998, plaintiff\u2019s right shoulder and clavicle pain had become worse and plaintiff was referred to Dr. Howard Jones (\u201cDr. Jones\u201d). X-rays revealed a probable dislocation of the right clavicle and plaintiff was restricted from using his right arm. On 13 October 1998, Dr. Jones found that plaintiff continued to have an obvious mass over the sternoclavicular joint.\nOn 29 December 1998, Dr. Jones reevaluated plaintiff and referred him to Dr. Jerome Jennings (\u201cDr. Jennings\u201d), an orthopedic surgeon, who diagnosed plaintiff as having a symptomatic subluxation of the sternoclavicular joint. Dr. Jennings then referred plaintiff to Dr. John Hayes (\u201cDr. Hayes\u201d), who removed plaintiff from work on 2 February 1999. Plaintiff had surgery on 8 February 1999, during which Dr. Hayes found a solid cartilaginous tumor, referred to as an intraosseous chondrosarcoma, within the medial end of the clavicle and a fracture of the cortex of the right clavicle. On 25 February 1999, plaintiff underwent another surgery performed by Dr. Joel Morgan (\u201cDr. Morgan\u201d) and Dr. George Hoerr (\u201cDr. Hoerr\u201d) to remove all margins of tissue that may have been affected by the tumor.\nPlaintiff remained out of work from 3 February 1999 to 25 April 1999. On 26 April 1999, Dr. Hoerr released plaintiff and allowed him to return to work with a restriction of no pulling of valves. Subsequently, on 30 April 1999, plaintiff aggravated the site of his right shoulder/clavicle injury while lifting a trash can at work. On 3 May 1999, due to this aggravation of the injury, plaintiff returned to Dr. Hayes and was restricted to no overhead lifting, maximum lifting of twenty-five pounds infrequently, and lifting ten pounds occasionally. Plaintiff was unable to perform the duties he was assigned even with these restrictions and was sent to Prime Care on 10 May 1999. Plaintiff was further restricted to no sweeping, no lifting, no pushing or pulling, and no squatting or climbing. Defendant was unable to provide plaintiff with a job within these additional restrictions. On 13 May 1999, Dr. Hayes wrote plaintiff out of work indefinitely. Plaintiff has not worked nor looked for work since 9 May 1999.\nOn 12 May 1999, plaintiff filed a Form 33 Request for Hearing. The case was heard before a deputy commissioner on 25 May 2000. At the outset of the hearing, the parties stipulated that plaintiff suffered an injury by accident in the course and scope of his employment, but defendant disputed the injuries sustained as a result of that accident. The deputy commissioner filed an opinion and award on 20 October 2000 from which defendant and plaintiff both appealed to the Full Commission. The Commission affirmed in part and modified in part the deputy commissioner\u2019s opinion and award by concluding the following in its 10 September 2001 opinion and award:\n1. Plaintiff sustained an admittedly compensable injury by accident arising out of and in the course and scope of his employment with defendant-employer on August 31, 1998. Additionally, this injury augmented and accelerated the disease process of the pre-existing intraosseous chondrosarcoma that was within plaintiffs right clavicle allowing the tumor to become more aggressive and to spread into adjacent tissues. N.C. Gen. Stat. \u00a7 97-2(6).\n2. As a result of his injury and its consequences, plaintiff is entitled to temporary total disability benefits at a weekly rate of $393.75 from February 2, 1999 until April 26, 1999 and again beginning May 10,1999 and continuing until he returns to work at the same or greater wages or until further order of the Commission, subject to a reasonable attorney\u2019s fee and defendant\u2019s credit. N.C. Gen. Stat. \u00a7 97-29.\n3. Plaintiff is entitled to the payment of all medical expenses incurred, or to be incurred, as a result of his injury by accident so long as the treatment tends to effect a cure, give relief or lessen the period of plaintiff\u2019s disability, subject to the limitations of N.C. Gen. Stat. \u00a7 97-25.1. N.C. Gen. Stat. \u00a7 97-25.\n4. Plaintiff\u2019s average weekly wage at the time of his injury by accident was $590.59 per week, yielding a compensation rate of $393.75. N.C. Gen. Stat. \u00a7 97-2(5).\n5. Defendant is not entitled to a credit for the short-term disability plan to which only plaintiff contributed. However, defendant is entitled to a credit for the benefits paid and to be paid in the future pursuant to the employer funded long-term disability plan from which plaintiff began receiving benefits in October 1999 and will continue to receive benefits until his sixty-fifth birthday in the amount of $166.29 per week.N.C. Gen. Stat. \u00a7 97-42.\n6. Plaintiff is not entitled to attorney\u2019s fees as defendant did not engage in stubborn or unfounded litigiousness and as defendant was successful upon appeal with regard to entitlement to a credit. N.C. Gen. Stat. \u00a7 97-88.1; \u00a7 97-88.\nOn 5 October 2001, plaintiff filed a motion for reconsideration, which the Commission denied on 20 December 2001. Plaintiff and defendant both appeal to this Court from the Commission\u2019s opinion and award.\nDEFENDANT\u2019S APPEAL\nI.\nDefendant initially contends the Commission erred in concluding that plaintiff is entitled to temporary total disability compensation as a result of the cancerous tumor located in his right sternoclavicular joint because defendant asserts this tumor was not accelerated or aggravated by his fall on 31 August 1998. We disagree.\nAt the outset, appellate review of a decision of the Industrial Commission is limited to two issues: \u201c(1) whether any competent evidence in the record supports the Commission\u2019s findings of fact, and (2) whether such findings of fact support the Commission\u2019s conclusions of law.\u201d Creel v. Town of Dover, 126 N.C. App. 547, 552, 486 S.E.2d 478, 480 (1997). \u201cThe Commission\u2019s findings of fact are conclusive on appeal if supported by competent evidence, notwithstanding evidence that might support a contrary finding.\u201d Hobbs v. Clean Control Corp., 154 N.C. App. 433, 435, 571 S.E.2d 860, 862 (2002). However, the Commission\u2019s conclusions of law are subject to de novo review. Holley v. Acts, Inc., 152 N.C. App. 369, 371, 567 S.E.2d 457, 459 (2002). In addition, the \u201cCommission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.\u201d Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683-84 (1982). Moreover, \u201c[t]he evidence tending to support plaintiff\u2019s claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence.\u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998).\nOur Supreme Court has stated that \u201c[w]hen a pre-existing, non-disabling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment . . . then the employer must compensate .the employee for the entire resulting disability even though it would not have disabled a normal person to that extent.\u201d Morrison v. Burlington Industries, 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981); Further, \u201c[i]n such a case[] where an injury has aggravated an existing condition and thus proximately caused the incapacity, the relative contributions of the accident and the pre-existing condition will not be weighed.\u201d Wilder v. Barbour Boat Works, 84 N.C. App. 188, 196, 352 S.E.2d 690, 694 (1987).\nIn the case sub judice, Dr. Hayes opined that the trauma to plaintiff\u2019s right clavicle from his fall on 31 August 1998, damaged the cortex of the bone that had previously confined the tumor and allowed the tumor to grow out of the confines of the bone into the surrounding soft tissues. Dr. Hayes testified that the trauma from the fall accelerated the onset of plaintiff\u2019s disability which began 3 February 1999. Dr. Tucker testified that if the tumor was found to have extended beyond the cortex of the clavicle at the site of the fracture, then the fall could have allowed the tumor to extend into the mediastinum, which is the thorax located centrally beneath the sternum. The Commission acknowledged that another expert, Dr. Chrysson, gave conflicting opinions concerning the causal relationship between plaintiff\u2019s fall and plaintiff\u2019s condition as related to the tumor. However, the Commission gave greater weight to Dr. Hayes\u2019 opinion. As noted earlier, the \u201cCommission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.\u201d Hilliard, 305 N.C. at 595, 290 S.E.2d at 683-84. Thus, after reviewing the record, we conclude that the Commission\u2019s findings, which are supported by competent evidence, in turn support the Commission\u2019s conclusion that plaintiff\u2019s injury sustained from his fall on 31 August 1998, \u201caugmented and accelerated the disease process of the preexisting intraosseous chondrosarcoma that was within plaintiff\u2019s right clavicle allowing the tumor to become more aggressive and to spread into adjacent tissues.\u201d\nThere is also ample evidence and findings to support the Commission\u2019s conclusion that plaintiff is entitled to temporary total disability benefits from 2 February 1999 until 26 April 1999 and again beginning 10 May 1999 and continuing until plaintiff returns to work at the same or greater wages or until further order of the Commission. Plaintiff bore the burden of showing that he had suffered a \u201cdisability\u201d (loss of wage-earning capacity) pursuant to N.C. Gen. Stat. \u00a7 97-29 (2001). See N.C. Gen. Stat. \u00a7 97-2(9) (2001). We conclude plaintiff satisfied this burden. Plaintiff was written out of work by his doctors from 2 February 1999 to 26 April 1999. On 30 April 1999, plaintiff aggravated the site of his right shoulder/clavicle injury while lifting a trash can. Thereafter, plaintiff returned to Dr. Hayes on 3 May 1999 and was restricted to light duty. Plaintiff was unable to perform his duties even with these restrictions and was further restricted to no sweeping, no lifting, no pushing or pulling, and no squatting or climbing. Defendant was unable to provide plaintiff a job within these additional restrictions. On 13 May 1999, Dr. Hayes wrote plaintiff out of work indefinitely. In addition, evidence was presented that plaintiff was fifty-five years old and all of his past work experience had been in manual labor. Dr. Hayes noted that plaintiff was unable to even perform janitorial work. There was also evidence that plaintiffs education was limited to special education classes due to a significant learning disability and plaintiff is a non-reader. Thus, it would be futile for plaintiff to seek other non-manual employment because of his prior experience, lack of education, and learning disability and according to the medical evidence, plaintiff is physically unable to perform manual labor. See Trivette v. Mid-South Management, Inc., 154 N.C. App. 140, 571 S.E.2d 692 (2002). Therefore, the Commission was proper in concluding that plaintiff became totally disabled as a result of his injury at work on 31 August 1998 and in awarding temporary total disability benefits.\nDefendant argues, in the alternative, that the Commission should have apportioned plaintiffs award of compensation. \u201cHowever, apportionment is not permitted when an employee becomes totally and permanently disabled due to a compensable injury\u2019s aggravation or acceleration of the employee\u2019s nondisabling, pre-existing disease or infirmity.\u201d Errante v. Cumberland County Solid Waste Management, 106 N.C. App. 114, 119, 415 S.E.2d 583, 586 (1992). We previously concluded that there was competent evidence before the Commission to support its finding that plaintiff\u2019s work-related injury accelerated plaintiff\u2019s pre-existing bone tumor. Therefore, the Commission properly declined to apportion the award.\nII.\nDefendant next claims the Commission erred in finding that plaintiff\u2019s average weekly wage at the time of his injury by accident was $590.59 per week. Defendant contends plaintiff\u2019s average weekly wage was $544.14, which was supported by the Form 22.\nPursuant to N.C. Gen. Stat. \u00a7 97-2(5),\n\u201c[a]verage weekly wages\u201d 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 . . . divided by 52; but if the injured employee lost more than seven consecutive calendar days at one or more times during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted... .\nN.C. Gen. Stat. \u00a7 97-2(5). Plaintiff argues that in calculating plaintiff\u2019s average weekly wage, the Commission properly included a longevity bonus in the amount of $600.29 and the overtime adjustment for longevity in the amount of $57.64 paid to plaintiff on 1 December 1997, which was not included in the Form 22 calculation. Plaintiff further argues that the Commission properly divided plaintiffs total gross earnings by 50.71 weeks (52 weeks less 1.29 weeks) because plaintiff did not work from 22 August 1998 through 30 August 1998, as shown on the face of the Form 22.\nPlaintiff asserts that the Commission correctly calculated plaintiff\u2019s average weekly wage as follows: total gross earnings of $29,953.02 ($28,295.09, figure obtained from Form 22, + longevity bonus of $657.93) divided by 50.71 weeks (52 weeks less 1.29 weeks). However, this calculation does not result in the Commission\u2019s finding of an average weekly wage of $590.59 since ($28,295.09 + $657.93) does not equal $29,953.02. We are unable to ascertain from the record how the Commission determined plaintiff\u2019s average weekly wage since the Commission\u2019s finding does not conform to the Form 22. Therefore, we remand this case for the Commission to make findings showing its specific calculations in reaching plaintiff\u2019s average weekly wage.\nPLAINTIFF\u2019S APPEAL\nI.\nPlaintiff contends the Commission erred in finding that \u201cdefendant-employer has paid, without contribution from the plaintiff, for the long-term disability benefits that plaintiff will receive until his sixty-fifth birthday.\u201d Plaintiff further argues the Commission erred in concluding, based upon this finding, that\ndefendant is entitled to a credit for the benefits paid and to be paid in the future pursuant to the employer funded long-term disability plan from which plaintiff began receiving benefits in October 1999 and will continue to receive benefits until his sixty-fifth birthday in the amount of $166.29 per week.\nPlaintiff asserts that disability retirement allowance is the sum of employee contributions and employer contributions. Accordingly, plaintiff claims that defendant is not entitled to a credit for such disability payments pursuant to N.C. Gen. Stat. \u00a7 97-42 (2001).\n\u201cThe decision of whether to grant a credit is within the sound discretion of the Commission.\u201d Shockley v. Cairn Studios Ltd., 149 N.C. App. 961, 966, 563 S.E.2d 207, 211 (2002). Therefore, this Court will not disturb the Commission\u2019s grant or denial of a credit to the employer on appeal in the absence of an abuse of discretion. Id. N.C. Gen. Stat. \u00a7 97-42 \u201cis the only statutory authority for allowing an employer in North Carolina any credit against workers\u2019 compensation payments due an injured employee.\u201d Effingham v. Kroger Co., 149 N.C. App. 105, 119, 561 S.E.2d 287, 296 (2002). This statute provides the following, in pertinent part:\nPayments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of this Article were not due and payable when made, may, subject to the approval of the Commission be deducted from the amount to be paid as compensation. . . . Unless otherwise provided by the plan, when payments are made to an injured employee pursuant to an employer-funded salary continuation, disability or other income replacement plan, the deduction shall be calculated from payments made by the employer in each week during which compensation was due and payable, without any carry-forward or carry-back of credit for amounts paid in excess of the compensation rate in any given week.\nN.C. Gen. Stat. \u00a7 97-42.\nIn the instant case, plaintiff was paid disability retirement benefits from the State of North Carolina Local Governmental Employees\u2019 Retirement System. Clark Case (\u201cMr. Case\u201d), who is financial systems and employee accounting manager for defendant, explained at the hearing that plaintiff\u2019s disability retirement benefits are fully funded by defendant until plaintiff reaches age sixty-five. According to Mr. Case, plaintiff\u2019s contributions do not go toward his disability retirement benefits but instead go to the retirement benefits that he will begin to receive upon reaching the age of sixty-five. Plaintiff offered no evidence contradicting Mr. Case\u2019s testimony at the hearing. However, after the Commission filed its opinion and award, plaintiff filed a motion for reconsideration and submitted an affidavit from J. Marshall Barnes, III (\u201cMr. Barnes\u201d), who is Deputy Director of the Retirement Systems Division in the Department of State Treasurer for the State of North Carolina. Mr. Barnes\u2019 affidavit directly conflicts with Mr. Case\u2019s testimony. Mr. Barnes stated that \u201c[t]he disability benefits paid to [plaintiff] by the Local Governmental Employees\u2019 Retirement System represent a combination of employee contributions which were deducted from his wages, employer contributions and interest/investment earnings on total contributions as defined by N.C.G.S. \u00a7 128-27(c), entitled Disability Retirement Benefits.\u201d In light of the directly conflicting statements from Mr. Case and Mr. Barnes, we remand this case to the Commission for a hearing on the credit issue. The Commission shall make findings as to whether the long-term disability benefits received and to be received by plaintiff until he reaches age sixty-five are funded solely by defendant\u2019s contributions or are made up of a combination of contributions from both plaintiff and defendant. After making this determination, the Commission must then conclude whether defendant is entitled to any credit for these long-term disability benefits pursuant to Section \u00a7 97-42 and if so, to how much credit defendant is entitled.\nII.\nPlaintiff next argues the Commission erred in applying the standard under N.C. Gen. Stat. \u00a7 97-88.1 (2001), when considering plaintiff\u2019s motion for an award of an attorney\u2019s fee pursuant to N.C. Gen. Stat. \u00a7 97-88 (2001).\nWe initially note that an attorney\u2019s fee award is within the Commission\u2019s discretion and therefore, the Commission\u2019s award or denial of an award must be upheld absent an abuse of that discretion. Taylor v. J. P. Stevens, 57 N.C. App. 643, 648, 292 S.E.2d 277, 280 (1982). In the instant case, plaintiff moved for an award of attorney\u2019s fees pursuant to Section 97-88.\nThe Commission or a reviewing court may award an injured employee attorney\u2019s fees \u201c[u]nder section 97-88, ... if (1) the insurer has appealed a decision to the full Commission or to any court, and (2) on appeal, the Commission or court has ordered the insurer to make, or continue making, payments of benefits to the employee.\u201d Estes v. N.C. State University, 117 N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994). Section 97-88 \u201cpermits the Full Commission or an appellate court to award fees and costs based on an insurer\u2019s unsuccessful appeal.\u201d Rackley v. Coastal Painting, 153 N.C. App. 469, 475, 570 S.E.2d 121, 125 (2002). Section 97-88 does not require that the appeal be brought without reasonable ground for plaintiff to be entitled to attorney\u2019s fees. Troutman v. White & Simpson, Inc., 121 N.C. App. 48, 464 S.E.2d 481 (1995). \u201cBy contrast, an award of attorney\u2019s fees under N.C.G.S. \u00a7 97-88.1 requires that the litigation be brought, prosecuted, or defended without reasonable ground.\u201d Id. at 53-54, 464 S.E.2d at 485. The purpose of this statute \u201cis to prevent \u2018stubborn, unfounded litigiousness\u2019 which is inharmonious with the primary purpose of the Workers\u2019 Compensation Act to provide compensation to injured employees.\u201d Beam v. Floyd\u2019s Creek Baptist Church, 99 N.C. App. 767, 768, 394 S.E.2d 191, 192 (1990) (quoting Sparks v. Mountain Breeze Restaurant & Fish House, Inc., 55 N.C. App. 663, 664, 286 S.E.2d 575, 576 (1982)).\nIn the case sub judice, the Commission concluded that plaintiff was \u201cnot entitled to attorney\u2019s fees as defendant did not engage in stubborn or unfounded litigiousness and as defendant was successful upon appeal with regard to entitlement to a credit. N.C. Gen. Stat. \u00a797-88.1; \u00a797-88.\u201d We acknowledge that the Commission unnecessarily concluded that plaintiff was not entitled to attorney\u2019s fees under Section 97-88.1 by stating that \u201cdefendant did not engage in stubborn or unfounded litigiousness,\u201d since plaintiff\u2019s motion for attorney\u2019s fees was not made pursuant to Section 97-88.1. However, the Commission also concluded that plaintiff was not entitled to attorney\u2019s fees under Section 97-88 because \u201cdefendant was successful upon appeal with regard to entitlement to a credit.\u201d As stated earlier, Section 97-88 \u201cpermits the Full Commission or an appellate court to award fees and costs based on an insurer\u2019s unsuccessful appeal.\u201d Rackley, 153 N.C. App. at 475, 570 S.E.2d at 125. Therefore, the Commission applied the proper standard in determining whether plaintiff was entitled to attorney\u2019s fees under Section 97-88. However, because we are remanding this case for a hearing on the credit issue we must also remand the issue of whether plaintiff is entitled to an award of attorney\u2019s fees for the Commission to consider in light of their determination of the credit issue.\nIII.\nPlaintiff finally claims the Commission erred in failing to allow his motion for interest on the award to plaintiff from the date of the original hearing pursuant to N.C. Gen. Stat. \u00a7 97-86.2 (2001). Defendant does not dispute this contention. We conclude plaintiff is entitled to interest on the award to plaintiff from the date of the original hearing, 25 May 2000, pursuant to Section 97-86.2. Accordingly, we remand this case for the Commission to award plaintiff interest on his award from 25 May 2000.\nIn summary, as to defendant\u2019s appeal, we affirm the Commission\u2019s award of temporary total disability benefits and remand for the Commission to make findings showing its specific calculations in reaching plaintiff\u2019s average weekly wage. As to plaintiff\u2019s appeal, we remand for a hearing on whether defendant is entitled to a credit and if so, the amount of credit to which defendant is entitled. We further remand this case for the Commission to determine whether plaintiff is entitled to attorney\u2019s fees in light of its conclusion on the credit issue. Finally, we hold that plaintiff is entitled to interest on the award to plaintiff from the date of the original hearing on 25 May 2000 and remand for the Commission to award plaintiff interest on his compensation award.\nAffirmed in part and remanded in part.\nJudges McGEE and CALABRIA concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Robert A. Lauverfor plaintiff-appellant.", "Wilson & Iseman, L.L.P., by S. Ranchor Harris, III, for defendant-appellant." ], "corrections": "", "head_matter": "RONALD C. COX, Employee, Plaintiff v. CITY OF WINSTON-SALEM, Employer, SELF-INSURED, Defendant\nNo. COA02-370\n(Filed 15 April 2003)\n1. Workers\u2019 Compensation\u2014 temporary total disability\u2014 apportionment\nThe Industrial Commission did not err in a workers\u2019 compensation case by awarding temporary total disability benefits to plaintiff employee and by failing to apportion plaintiffs award of compensation as a result of his injury at work on 31 August 1998, because there was competent evidence before the Commission to support its finding that plaintiffs work-related injury accelerated plaintiff\u2019s pre-existing bone tumor.\n2. Workers\u2019 Compensation\u2014 average weekly wage\u2014 calculation\nThe Industrial Commission\u2019s calculation of plaintiff employee\u2019s average weekly wage under N.C.G.S. \u00a7 97-2(5) in a workers\u2019 compensation case is remanded in order for the Commission to make findings showing its specific calculations in reaching plaintiff\u2019s average weekly wage.\n3. Workers\u2019 Compensation\u2014 long-term disability retirement benefits \u2014 entitlement to credit\nThe Industrial Commission\u2019s decision in a workers\u2019 compensation case to grant defendant a credit for the long-term disability retirement benefits paid and to be paid to plaintiff employee until plaintiff reaches age sixty-five is remanded to the Commission for a hearing on whether defendant is entitled to a credit under N.C.G.S. \u00a7 97-42 and the amount, if any, based on findings as to whether the long-term disability benefits are funded solely by defendant\u2019s contributions or are made up of a combination of contributions from both plaintiff and defendant.\n4. Workers\u2019 Compensation\u2014 attorney fees \u2014 entitlement to credit\nThe Industrial Commission\u2019s decision in a workers\u2019 compensation case to deny plaintiff employee\u2019s motion for an award of attorney fees under N.C.G.S. \u00a7 97-88, based on the fact that defendant was successful upon appeal with regard to entitlement to a credit, is remanded because the case is already remanded on the issue of whether defendant is entitled to a credit.\n5. Workers\u2019 Compensation\u2014 interest on award \u2014 date of original hearing\nThe Industrial Commission erred in a workers\u2019 compensation case by failing to allow plaintiff employee\u2019s motion for interest on the award to plaintiff from the date of the original hearing under N.C.G.S. \u00a7 97-86.2 and the case is remanded for the Commission to award plaintiff interest on his award from 25 May 2000.\nAppeal by plaintiff and defendant from an opinion and award entered 10 September 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 23 January 2003.\nRobert A. Lauverfor plaintiff-appellant.\nWilson & Iseman, L.L.P., by S. Ranchor Harris, III, for defendant-appellant." }, "file_name": "0228-01", "first_page_order": 260, "last_page_order": 271 }