{ "id": 8320763, "name": "HUBERT CHAMBERS, Plaintiff-Employee v. TRANSIT MANAGEMENT, Defendant-Employer, SELF INSURED (Compensation Claims Solutions, Servicing Agent)", "name_abbreviation": "Chambers v. Transit Management", "decision_date": "2005-08-16", "docket_number": "No. COA04-677", "first_page": "540", "last_page": "549", "citations": [ { "type": "official", "cite": "172 N.C. App. 540" } ], "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 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(6)" }, { "page": "(6)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(13)" } ], "opinion_index": 0 }, { "cite": "508 S.E.2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "834" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11203821 ], "year": 1998, "pin_cites": [ { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0649-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "579 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "113", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185540 ], "year": 2003, "pin_cites": [ { "page": "171", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0168-01" ] }, { "cite": "409 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521373 ], "year": 1991, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0289-01" ] }, { "cite": "578 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "673" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185835 ], "year": 2003, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0228-01" ] }, { "cite": "85 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "599" } ], "opinion_index": 1 }, { "cite": "241 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612018 ], "year": 1955, "pin_cites": [ { "page": "551" } ], "opinion_index": 1, "case_paths": [ "/nc/241/0448-01" ] }, { "cite": "599 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "511", "parenthetical": "citing Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 551, 85 S.E.2d 596, 599 (1955)" } ], "opinion_index": 1 }, { "cite": "358 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987216 ], "year": 2004, "pin_cites": [ { "page": "705", "parenthetical": "citing Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 551, 85 S.E.2d 596, 599 (1955)" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0701-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-84", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 1 }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "683" }, { "page": "683" } ], "opinion_index": 1 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "595" }, { "page": "395" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "454 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "opinion_index": 1 }, { "cite": "339 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556426, 2559318, 2557847, 2557592, 2559291 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/339/0737-03", "/nc/339/0737-05", "/nc/339/0737-04", "/nc/339/0737-01", "/nc/339/0737-02" ] }, { "cite": "449 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "238" } ], "opinion_index": 1 }, { "cite": "116 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525497 ], "year": 1994, "pin_cites": [ { "page": "709" } ], "opinion_index": 1, "case_paths": [ "/nc-app/116/0703-01" ] }, { "cite": "377 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "93 N.C. App. 336", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528036 ], "year": 1989, "pin_cites": [ { "page": "337" } ], "opinion_index": 1, "case_paths": [ "/nc-app/93/0336-01" ] }, { "cite": "301 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "365-66" } ], "opinion_index": 1 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "year": 1983, "pin_cites": [ { "page": "93-95" } ], "opinion_index": 1, "case_paths": [ "/nc/308/0085-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(6)" }, { "page": "(9)" }, { "page": "(9)" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 97-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(13)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 893, "char_count": 21116, "ocr_confidence": 0.741, "pagerank": { "raw": 2.166327304420039e-07, "percentile": 0.7705030293271924 }, "sha256": "6b3d18d8b479f7dc34406bb732ffd23baca233f762483cb2ecb263eea8d24906", "simhash": "1:362343c2f2132e2d", "word_count": 3299 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge JACKSON concurring in part; dissenting in part." ], "parties": [ "HUBERT CHAMBERS, Plaintiff-Employee v. TRANSIT MANAGEMENT, Defendant-Employer, SELF INSURED (Compensation Claims Solutions, Servicing Agent)" ], "opinions": [ { "text": "BRYANT, Judge.\nHubert Chambers (plaintiff) was a fifty-nine-year-old high school graduate who had been employed as a bus driver for Transit Management (defendant) since 9 April 1970. Plaintiffs job duties consisted of driving two types of buses: the Nova bus and the Flexible bus, both of which required plaintiff to operate the parking brake, destination box, toggle switch (for activating the bus\u2019 four-way flashers) and adjusting both interior and exterior mirrors on the bus. Plaintiff normally worked seven hour shifts, six days per week. Plaintiff estimated that driving the bus required the use of both hands ninety to one hundred percent of the time, but greater use of his left hand was required to operate the various controls located on the left side of the bus. Drivers were assigned bus routes every three to four months.\nOn 4 December 2000, plaintiff was assigned a new bus route and began work at approximately 4:00 p.m. Plaintiff began experiencing neck and shoulder problems sometime that afternoon and between 10:00 and 11:00 p.m. he reported his difficulties to his dispatcher and requested a replacement. Plaintiff was unsure whether the cause of his injury was actually work related and did not fill out an injury/ illness report until 18 December 2000 at which time he listed only having problems with his left arm.\nPlaintiff initially sought treatment from his family physician who subsequently referred plaintiff to Charlotte Orthopedic Specialists. From 29 December 2000 through 16 March 2001, plaintiff was seen by several doctors at Charlotte Orthopedic Specialists and on 2 April 2001, plaintiff was seen by a neurologist, Dr. Tim E. Adamson. An MRI ordered by Dr. Adamson showed plaintiff had, among other things, neural foraminal narrowing at the C5-6 level on the left. Dr. Adamson subsequently performed two surgeries on plaintiff. Following the first surgery, Dr. Adamson cleared plaintiff to return to work on 30 July 2001. Without attempting to return to work, plaintiff contacted Dr. Adamson and told him he felt he could not return to work with defendant. Plaintiff then underwent nerve conduction studies that revealed ulnar neuropathy for which plaintiff underwent surgery on 28 September 2001. On 5 March 2002 plaintiff had a Functional Capacity Evaluation (FCE) which indicated his level of function most closely resembled the category of sedentary to light physical demand. Dr. Adamson gave plaintiff a thirty percent permanent partial impairment rating for his left arm.\nOn 20 September 2002, plaintiffs claim was heard before Deputy Commissioner Nancy W. Gregory, who filed an Opinion and Award on 24 February 2003 denying plaintiffs claims for workers\u2019 compensation benefits. Deputy Commissioner Gregory concluded plaintiff did not sustain an injury by accident or a specific traumatic incident arising out of and in the course of his employment. Plaintiff appealed to the Full Commission (Commission) which filed an Opinion and Award on 3 February 2004, reversing Deputy Commissioner Gregory\u2019s denial of workers\u2019 compensation benefits to plaintiff. The Commission concluded plaintiff had sustained a cervical spine injury as a result of a specific traumatic incident and that plaintiff\u2019s ulnar nerve entrapment neuropathy and cervical spine condition constituted occupational diseases. The Commission ordered defendant to pay plaintiff disability income and his medical expenses arising from the injury and disease. Defendant appeals the Opinion and Award of the Commission.\nOn appeal, defendant raises three issues: (I) whether the Commission erred in determining plaintiff suffered a cervical spine injury as a result of a specific traumatic incident during the course of his employment on 4 December 2000; (II) whether the Commission erred in determining plaintiff\u2019s ulnar neuropathy and cervical spine condition were compensable occupational diseases; and (III) whether the Commission erred in concluding plaintiff is entitled to continuing disability benefits. For the following reasons, we find no error.\nIt is well-settled that review of an Industrial Commission decision by this Court is limited to the determination of whether there is competent evidence to support the Commission\u2019s Findings of Fact and whether those findings support the Conclusions of Law. Cox v. City of Winston-Salem, 157 N.C. App. 228, 232, 578 S.E.2d 669, 673 (2003); Pernell v. Piedmont Circuits, 104 N.C. App. 289, 292, 409 S.E.2d 618, 619 (1991). The Commission\u2019s findings of fact are conclusive on appeal even where there is contrary evidence, and such findings may only be set aside where there is a \u201ccomplete lack of competent evidence to support them.\u201d Johnson v. Herbie\u2019s Place, 157 N.C. App. 168, 171, 579 S.E.2d 110, 113 (2003) (citation omitted); see also Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). Our review \u201c \u2018goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Id.\nIn his deposition, Dr. Adamson provided the following testimony:\nQ. And would you have an opinion about whether the type of job duties that have been identified would have placed him at an increased risk of developing these types of symptoms and problems, or aggravation of the condition in the cervical spine as opposed to the general population?\nA: I would believe so, yes.\nThis testimony clearly states, in Dr. Adamson\u2019s opinion, that the plaintiff\u2019s occupation as a bus driver placed him at higher risk than the general public of developing a cervical spine condition. Admittedly there was conflicting testimony from Dr. Dover as to whether plaintiff\u2019s occupation placed him at increased risk. However, the Commission, not the appellate court, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Bailey v. Sears Roebuck & Co., 131 N.C. App. 649, 653, 508 S.E.2d 831, 834 (1998).\nAdditionally, the Commission made the following significant finding of fact concerning plaintiff\u2019s claims that his injuries were the result of a compensable occupational disease and qualified as originating from a specific traumatic incident:\n9. Dr. Adamson rendered opinions, which the Full Commission finds to be fact, that plaintiff\u2019s job duties with defendant caused or aggravated the conditions for which treatment was rendered and that plaintiff\u2019s job placed him at an increased risk of developing these conditions. The sudden pain to plaintiff\u2019s neck on December 4, 2000, qualifies under North Carolina law as a specific traumatic incident of the work assigned.\nThe Commission also made the following Conclusions of Law:\n1. The medical and testimonial evidence supports compensa-bility of plaintiffs ulnar nerve entrapment neuropathy condition, \u201cdouble crush syndrome\u201d, and aggravation of cervical spine condition as occupational diseases under N.C. Gen. Stat. \u00a7 97-53(13). Additionally, since the disabling aggravation of the cervical spine occurred within a cognizable time period, it qualifies as a specific traumatic incident. N.C. Gen. Stat. \u00a7 97-2(6).\n2. Disability caused by, or death resulting from, a disease is com-pensable only when \u2018the disease is an occupational disease, or aggravated or accelerated by\u2019 causes and conditions characteristic of and peculiar to claimant\u2019s employment, [(emphasis in original) (citations omitted).] Where, as here, there is evidence of both causation and aggravation connected to particular aspects of an employee\u2019s job duties (i.e. repetitious activity) to which the general public is not exposed, compens-ability is logically and legally warranted ....\n3. The medical and testimonial evidence supports compensa-bility of plaintiff\u2019s cervical injury as a specific traumatic incident under N.C. Gen. Stat. \u00a7 97-2(6).\nThis record contains sufficient evidence to support the facts found by the Commission. Acknowledging the Commission\u2019s duty to judge the credibility of the witnesses and to determine the weight given to testimony, these facts are sufficient to support the conclusion of the Commission that plaintiff is entitled to disability income as compensation for his injury resulting from a specific traumatic incident as well as for injuries resulting from a compensable occupational disease.\nAffirmed.\nJudge HUNTER concurs.\nJudge JACKSON concurring in part; dissenting in part.", "type": "majority", "author": "BRYANT, Judge." }, { "text": "JACKSON, Judge,\nconcurring in part; dissenting in part.\nFor the reasons stated below, I must respectfully dissent from the majority\u2019s decision to affirm the Opinion and Award of the Industrial Commission in its entirety.\nThe majority addresses only defendant\u2019s assignment of error that the Commission erred in determining plaintiffs ulnar neuropathy and cervical spine condition were compensable occupational diseases. While I concur with the majority\u2019s conclusion that there is competent evidence to support the Commission\u2019s finding that plaintiff\u2019s ulnar neuropathy was compensable, I am unable to concur with that conclusion regarding plaintiff\u2019s cervical spine condition.\nThe majority bases its decision with regard to plaintiff\u2019s cervical spine condition upon Dr. Adamson\u2019s response, on direct examination, to the question:\nAnd would you have an opinion about whether the type of job duties that have been identified would have placed him at an increased risk of developing these type of symptoms and problems, or aggravation of the condition in the cervical spine as opposed to the general population?\nThis question clearly asks if Dr. Adamson had an opinion as to whether plaintiff\u2019s job duties would have placed him at a greater risk of either causing or aggravating his cervical spine conditions. A plaintiff\u2019s job duties must place him at a greater risk of developing the condition than the general population for it to be com-pensable under our Workers Compensation Act. N.C. Gen. Stat. \u00a7 97-53(13); Rutledge v. Tultex Corp., 308 N.C. 85, 93-95, 301 S.E.2d 359, 365-66 (1983). Dr. Adamson\u2019s response to this question, \u201cI, would believe so, yes,\u201d is not sufficient to support com-pensability. Dr. Adamson\u2019s response is ambiguous, as it relates to compensability, since it is unclear if Dr. Adamson\u2019s opinion is that plaintiff\u2019s job duties placed him at-a greater risk of developing the condition, aggravating it, or both.\nThis ambiguity is resolved, however, by Dr. Adamson\u2019s testi-' mony upon cross-examination. With regard to the specific testimony cited by the majority, Dr. Adamson was asked:\nIn response to Mr. Whitlow\u2019s question in which he asked you to assume that the job site analysis is accurate and the accuracy of what\u2019s in the videotape concerning questions about the left ulnar neuropathy, I want to make sure I\u2019m clear on what you have indicated, am I correct in understanding that in your opinion, you\u2019re not able to say that the bus driving activities caused the ulnar neuropathy, but that it could have aggravated the ulnar neuropathy?\n(Emphasis added.) Dr. Adamson responded, \u201cI think that\u2019s correct.\u201d Dr. Adamson was then asked, \u201c[a]nd the same thing was basically true for the neck condition, the condition as treated there?\u201d He responded, \u201c[s]ure.\u201d This testimony makes clear that, in Dr. Adamson\u2019s opinion, plaintiff\u2019s job duties placed him at a greater risk of aggravating the conditions, but not of developing them. This testimony is not in conflict with Dr. Adamson\u2019s testimony on direct examination, but rather clarifies his response to the compound question asked by plaintiff\u2019s attorney.\nNor does this testimony create a conflict between the testimony of different witnesses thus requiring the Commission to weigh the testimony and determine the credibility of conflicting witnesses. There is no conflict between the testimony of Dr. Adamson and Dr. Dover regarding whether plaintiff was at an increased risk of developing his cervical disease due to his job duties. Both doctors\u2019 testimony was clear that plaintiff was not at greater risk than the general public. Consequently, the Commission\u2019s decision was not based on its judgment of the weight and credibility of witnesses and therefore beyond our scope of review, but rather it was based upon insufficient evidence and is subject to reversal.\nFocusing on one portion of a witness\u2019 testimony, to the exclusion of other testimony by the same witness that develops or clarifies that testimony, sets a dangerous precedent. To do so will allow a witness\u2019 misstatement, an answer based on a misunderstanding of the question, or, as in this case, a simple answer to a compound question to be the basis for an Opinion and Award of the Commission even if the testimony is later corrected or clarified on cross-examination. This clearly would frustrate one of the primary purposes of cross-examination. These are not two separate pieces of evidence to be considered separately, but rather interrelated parts of the same evidence which must be considered in conjunction with each other.\nIn addition to the assignment of error discussed above, defendant assigned error to the Commission\u2019s finding that plaintiff suffered a compensable cervical spine injury on 4 December 2000. Two theories exist upon which a compensable back injury can be based: \u201c(1) injury by accident... or (2) injury . . . [resulting] from a specific traumatic incident.\u201d Livingston v. James C. Fields & Co., 93 N.C. App. 336, 337, 377 S.E.2d 788 (1989). Plaintiff\u2019s cervical spine injury was found to be compensable by the full Commission under the second theory. Defendant contends plaintiff\u2019s cervical spine injury cannot be com-pensable as arising from a specific traumatic injury since the evidence must show that there was some event which caused the injury. Fish v. Steelcase, Inc., 116 N.C. App. 703, 709, 449 S.E.2d 233, 238 (1994), cert. denied, 339 N.C. 737, 454 S.E.2d 650 (1995). The Fish Court explained that a worker is required only to show the injury occurred at a \u201cjudicially cognizable\u201d point in time to prove a specific traumatic incident. Id. The Court continued:\nJudicially cognizable does not mean \u201cascertainable on an exact date.\u201d Instead, the term should be read to describe a showing by plaintiff which enables the Industrial Commission to determine when, within a reasonable period, the specific injury occurred. The evidence must show that there was some event that caused the injury, not a gradual deterioration. If the window during which the injury occurred can be narrowed to a judicially cognizable period, then the statute is satisfied.\nId.\nThe full Commission found the pain in plaintiffs neck, left arm, and shoulder occurred within a judicially cognizable period of time on 4 December 2000 while he was performing his job-related duties. This finding was supported by uncontroverted testimony and documentation identifying the onset of the symptoms of plaintiffs injury to have manifested themselves during his work shift on 4 December 2000.\nAlthough the onset of plaintiffs symptoms relating to his cervical spine condition were found to have occurred in a judicially cognizable period of time, they still must have \u201caris[en] out of and in the course of his employment\u201d in order to be compensable. N.C. Gen. Stat. \u00a7 97-2(6) (2003). In his deposition testimony, Dr. Adamson stated, regarding plaintiffs cervical condition, \u201cthe general abnormality is not considered a work-related event. ...\u201d This statement is unequivocal that plaintiffs cervical spondylosis was not considered a work-related injury and there is no other evidence in the record to the contrary. Therefore, I would hold that the full Commission erred in concluding that plaintiff suffered a compensable cervical spine injury as a result of a specific traumatic incident during the course of his employment on 4 December 2000.\nDefendant also assigns as error the Commission\u2019s conclusion that plaintiff is entitled to continuing disability benefits. Defendant presents two alternative bases for its contention: (1) plaintiff failed to prove that he is disabled as defined by North Carolina General Statutes section 97-2(9) and (2) plaintiff refused to accept suitable alternative employment and is, therefore, not entitled to receive continuing benefits even if it is determined that he is disabled.\nThe Workers\u2019 Compensation Act defines \u201cdisability\u201d as: \u201cincapacity 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. Gen. Stat. \u00a7 97-2(9) (2003). Our Supreme Court has held that for an employee to be \u201cdisabled\u201d under our Workers\u2019 Compensation Act the Commission must find that: (1) the employee \u201cwas incapable after his injury of earning the same wages he had earned before his injury in the same employment\u201d; (2) the employee \u201cwas incapable after his injury of earning the same wages he had earned before his injury in any other employment\u201d; and (3) the employee\u2019s \u201cincapacity to earn was caused by [his] injury.\u201d Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).\nAs the Commission has exclusive original jurisdiction over workers\u2019 compensation hearings, it must hear the evidence and file an award, \u201ctogether with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue.\u201d N.C. Gen. Stat. \u00a7 97-84 (2003). The Commission is not required to make findings regarding each fact in the evidence presented, however, it must make findings regarding the specific facts which are crucial to the determination of the right of compensability in order to allow a reviewing court to determine if the Commission\u2019s award is adequately supported by the evidence. Johnson v. Southern Tire Sales and Serv., 358 N.C. 701, 705, 599 S.E.2d 508, 511 (2004) (citing Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 551, 85 S.E.2d 596, 599 (1955)).\nThe only findings of fact made by the Commission regarding plaintiff\u2019s ability to work are the following:\n18. Plaintiff underwent a functional capacity evaluation on March 5, 2002. Dr. Adamson reviewed the functional capacity evaluation and concurred with the results. On May 13, 2002, he rated plaintiff with a 30% permanent partial impairment of the left upper extremities, which Dr. Adamson later clarified to be the arm and not merely the hand. Furthermore, according to Dr. Adamson, plaintiff is capable of sedentary to light work, but not of driving the bus due to the use of the left hand and public safety issues.\n19. Plaintiff has not returned to work for defendant or another employer. The greater weight of the evidence demonstrates that plaintiff is incapable of returning to his former employment. Defendant has neither offered work to plaintiff within his restrictions, nor offered or provided vocational rehabilitation or retraining.\nThere is evidence in the record to support the findings that plaintiff has not returned to work with any employer and that he currently is unable to return to his former employment. However, whether or not plaintiff is able to return to his former employment is not the correct standard for determining disability. The correct standard is whether plaintiff is incapable of earning the same wages he was earning at the time of the injury in the same or alternate employment. N.C. Gen. Stat. \u00a7 97-2(9) (2003); see Hilliard, 305 N.C. at 395, 290 S.E.2d at 683. The Commission failed to find facts sufficient to allow this Court to review whether the award of continuing disability compensation to plaintiff is adequately supported by the evidence. Therefore, I would remand this matter to the Commission for further findings of fact regarding this issue.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JACKSON, Judge," } ], "attorneys": [ "Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by Robert A. Whitlow, for plaintiff-appellee.", "Hedrick, Eatman, Gardner & Kincheloe, L.L.R, by John Brem Smith and Jennifer I. Mitchell, for defendant-appellant." ], "corrections": "", "head_matter": "HUBERT CHAMBERS, Plaintiff-Employee v. TRANSIT MANAGEMENT, Defendant-Employer, SELF INSURED (Compensation Claims Solutions, Servicing Agent)\nNo. COA04-677\n(Filed 16 August 2005)\n1. Workers\u2019 Compensation\u2014 appellate review \u2014 standard of review\nReview of an Industrial Commission decision by the Court of Appeals is limited to whether there is competent evidence to support the Commission\u2019s findings of fact and whether those findings support the conclusions of law.\n2. Workers\u2019 Compensation\u2014 specific traumatic injury \u2014 com-pensable occupational disease\nThere was sufficient evidence in a workers\u2019 compensation hearing to support' findings by the Industrial Commission that a bus driver who developed a cervical spine condition and an ulnar neuropathy was entitled to disability income as compensation for an injury resulting from a specific traumatic incident as well as for injuries resulting from a compensable occupational disease. The Commission judges the credibility of witnesses and determines the weight to be given the testimony.\nJudge Jackson concurring in part and dissenting in part.\nAppeal by defendant from Opinion and Award of the North Carolina Industrial Commission filed 3 February 2004 for the Full Commission by Commissioner Thomas J. Bolch. Heard in the Court of Appeals 27 January 2005.\nSellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by Robert A. Whitlow, for plaintiff-appellee.\nHedrick, Eatman, Gardner & Kincheloe, L.L.R, by John Brem Smith and Jennifer I. Mitchell, for defendant-appellant." }, "file_name": "0540-01", "first_page_order": 570, "last_page_order": 579 }