{ "id": 8185172, "name": "BILLY MYERS, Employee, Plaintiff v. BBF PRINTING SOLUTIONS (formerly Wesley Business Forms), Employer, SELF-INSURED, Defendant", "name_abbreviation": "Myers v. BBF Printing Solutions", "decision_date": "2007-06-19", "docket_number": "No. COA06-1298", "first_page": "192", "last_page": "206", "citations": [ { "type": "official", "cite": "184 N.C. App. 192" } ], "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": "631 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636184, 12636183 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/631/0520-02", "/se2d/631/0520-01" ] }, { "cite": "622 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634490 ], "year": 2005, "pin_cites": [ { "page": "190", "parenthetical": "\"[Defendant assigned error to numerous findings of fact by the trial court, but has failed to argue any of these assignments of error in her brief on appeal. Such assignments of error are therefore abandoned, and the trial court's findings are binding on appeal.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0187-01" ] }, { "cite": "640 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637762 ], "year": 2007, "pin_cites": [ { "page": "779", "parenthetical": "\"[W]e will not review defendants' unargued assignments of error.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0777-01" ] }, { "cite": "157 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1967, "pin_cites": [ { "page": "380", "parenthetical": "emphasis supplied" }, { "page": "380" }, { "page": "380" } ], "opinion_index": 0 }, { "cite": "271 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566667 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "705", "parenthetical": "emphasis supplied" }, { "page": "705" }, { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0702-01" ] }, { "cite": "556 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2001, "pin_cites": [ { "page": "680-81", "parenthetical": "Plaintiff met her burden of proving total and permanent disability through medical testimony \"regarding the extent of her physical limitations\" and evidence plaintiff unsuccessfully sought numerous jobs." }, { "page": "680-81" }, { "page": "681" }, { "page": "752" }, { "page": "681" }, { "page": "752-53" }, { "page": "680-81" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 748", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9381469 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "752-53", "parenthetical": "Plaintiff met her burden of proving total and permanent disability through medical testimony \"regarding the extent of her physical limitations\" and evidence plaintiff unsuccessfully sought numerous jobs." }, { "page": "752-53" }, { "page": "753" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0748-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "emphasis supplied" }, { "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", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "516 S.E.2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "187", "parenthetical": "\"[T]he Commission's findings must sufficiently reflect that [the] plaintiff produced evidence to prove all three Hilliard factors.\"" }, { "page": "187" }, { "page": "187" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 631", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11221098 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "635", "parenthetical": "\"[T]he Commission's findings must sufficiently reflect that [the] plaintiff produced evidence to prove all three Hilliard factors.\"" }, { "page": "635" }, { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0631-01" ] }, { "cite": "345 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "317 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779801 ], "year": 1986, "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0179-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(9)", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1982, "pin_cites": [ { "page": "683", "parenthetical": "emphasis supplied" }, { "page": "683" }, { "page": "683" }, { "page": "683" }, { "page": "683" }, { "page": "683" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "weight": 7, "year": 1982, "pin_cites": [ { "page": "595" }, { "page": "595" }, { "page": "595" }, { "page": "595" }, { "page": "595" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "360 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789633, 3787619, 3789029, 3786345, 3796682, 3794669, 3794801, 3794097, 3790106 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0491-03", "/nc/360/0491-06", "/nc/360/0491-09", "/nc/360/0491-02", "/nc/360/0491-01", "/nc/360/0491-05", "/nc/360/0491-07", "/nc/360/0491-08", "/nc/360/0491-04" ] }, { "cite": "174 N.C. App. 714", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353103 ], "year": 2005, "pin_cites": [ { "page": "718", "parenthetical": "\"[Defendant assigned error to numerous findings of fact by the trial court, but has failed to argue any of these assignments of error in her brief on appeal. Such assignments of error are therefore abandoned, and the trial court's findings are binding on appeal.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0714-01" ] }, { "cite": "141 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "264 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573590 ], "year": 1965, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/264/0401-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "553" }, { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "116" }, { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "597 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2004, "pin_cites": [ { "page": "700", "parenthetical": "quoting Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000); Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)" }, { "page": "700" }, { "page": "700" }, { "page": "700" }, { "page": "700" } ], "opinion_index": 0 }, { "cite": "358 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986640 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "496", "parenthetical": "quoting Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000); Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)" }, { "page": "496" }, { "page": "496" }, { "page": "496" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0488-01" ] }, { "cite": "181 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375565 ], "year": 2007, "pin_cites": [ { "page": "597", "parenthetical": "\"[W]e will not review defendants' unargued assignments of error.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0594-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 11, "opinion_index": 0 }, { "cite": "621 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634272, 12634270, 12634271 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/621/0170-03", "/se2d/621/0170-01", "/se2d/621/0170-02" ] }, { "cite": "298 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "683", "parenthetical": "\"In the absence of an abuse of discretion the Commission's denial of attorneys' fees will not be disturbed.\"" } ], "opinion_index": 1 }, { "cite": "307 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562490 ], "year": 1983, "pin_cites": [ { "page": "394", "parenthetical": "\"In the absence of an abuse of discretion the Commission's denial of attorneys' fees will not be disturbed.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0392-01" ] }, { "cite": "422 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "355" } ], "opinion_index": 1 }, { "cite": "108 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522354 ], "year": 1992, "pin_cites": [ { "page": "57-58" } ], "opinion_index": 1, "case_paths": [ "/nc-app/108/0055-01" ] }, { "cite": "578 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "677" } ], "opinion_index": 1 }, { "cite": "157 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185835 ], "year": 2003, "pin_cites": [ { "page": "238" } ], "opinion_index": 1, "case_paths": [ "/nc-app/157/0228-01" ] }, { "cite": "360 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788768, 3797185, 3792645, 3792391, 3791370, 3790892, 3791181, 3789709, 3794291, 3790036, 3789205, 3788855 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc/360/0479-05", "/nc/360/0060-05", "/nc/360/0068-02", "/nc/360/0060-06", "/nc/360/0060-08", "/nc/360/0060-02", "/nc/360/0060-04", "/nc/360/0060-09", "/nc/360/0060-01", "/nc/360/0060-07", "/nc/360/0060-03", "/nc/360/0490-05" ] }, { "cite": "606 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "701" } ], "opinion_index": 1 }, { "cite": "168 N.C. App. 23", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468017 ], "year": 2005, "pin_cites": [ { "page": "30-31" } ], "opinion_index": 1, "case_paths": [ "/nc-app/168/0023-01" ] }, { "cite": "470 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "354" }, { "page": "354" } ], "opinion_index": 1 }, { "cite": "122 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918005 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "477" }, { "page": "477" } ], "opinion_index": 1, "case_paths": [ "/nc-app/122/0473-01" ] }, { "cite": "570 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "125", "parenthetical": "emphasis added" }, { "page": "125" } ], "opinion_index": 1 }, { "cite": "153 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250443 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "475", "parenthetical": "emphasis added" }, { "page": "475" } ], "opinion_index": 1, "case_paths": [ "/nc-app/153/0469-01" ] }, { "cite": "449 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "764", "parenthetical": "emphasis added" }, { "page": "765" }, { "page": "764" } ], "opinion_index": 1 }, { "cite": "117 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524468 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "128", "parenthetical": "emphasis added" }, { "page": "129" }, { "page": "128" } ], "opinion_index": 1, "case_paths": [ "/nc-app/117/0126-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 1 } ], "analysis": { "cardinality": 1028, "char_count": 31709, "ocr_confidence": 0.745, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.31182435732739633 }, "sha256": "ffa1e2fc95211b09e0f301b190f3fc42d83a92aa0d54e2a09f0e1372fab3ccbb", "simhash": "1:061b648b1def2c50", "word_count": 5155 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs.", "Judge WYNN concurs in part and dissents in part by separate opinion." ], "parties": [ "BILLY MYERS, Employee, Plaintiff v. BBF PRINTING SOLUTIONS (formerly Wesley Business Forms), Employer, SELF-INSURED, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nBBF Printing Solutions (\u201cdefendant\u201d) appeals from the Full Commission of the North Carolina Industrial Commission\u2019s (\u201cthe Commission\u201d) opinion and award entered granting Billy Myers (\u201cplaintiff\u2019) permanent total disability benefits. We affirm in part and reverse in part.\nI. Background\nOn 4 June 1979, plaintiff began work for defendant at its plant in Rural Hall, North Carolina. Plaintiffs job duties included setting up and monitoring eleven units on a seventeen-inch printing press.\nOn 9 August 2001, plaintiff sustained a work-related injury to his non-dominant left hand and arm. Plaintiff was injured while energizing a printing press when a rewind shaft attached to the press rotated in a different direction than he anticipated. The press pulled his left arm toward it and twisted his left thumb and wrist. Plaintiff continued work until his thumb and wrist began to swell. Plaintiff went to a local medical facility, was given a splint, and returned to work the next day.\nPlaintiff continued working for defendant in a limited capacity until 15 November 2001, when defendant notified its employees the Rural Hall plant was closing. Defendant laid off most of its employees, including plaintiff. Plaintiff had been employed as a printing press operator with defendant for twenty-two years.\nOn 4 December 2001, plaintiff filed a claim for workers\u2019 compensation benefits. On 20 November 2002, the matter was heard before Deputy Commissioner Nancy W. Gregory. On 15 July 2003, Deputy Commissioner Gregory entered an opinion and award that concluded plaintiff: (1) suffered an injury by accident to his left thumb, wrist, hand, and shoulder; (2) failed to prove he was incapable, because of the injury, to earn the same or greater wages he was receiving at the date of the injury in the same or any other employment; (3) was not entitled to receive temporary total or temporary partial disability; and (4) was entitled to additional medical treatment. Both plaintiff and defendant appealed to the Full Commission. Defendant failed to file a Form 44 Application for Review with the Commission and did not perfect his appeal.\nOn 20 January 2004, the matter was heard before the Full Commission. On 18 January 2005, plaintiff moved for an award of attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88. On 13 July 2006, the Commission entered an opinion and award that concluded: (1) plaintiff suffered an injury by accident to his left thumb, arm, hand, and shoulder arising out of and in the course of his employment with defendant; (2) plaintiff was entitled to total disability compensation from 15 November 2001 and continuing each week for his lifetime; and (3) defendant shall pay all of plaintiff\u2019s medical expenses relating to the injury \u201cas long as said treatment tends to effect a cure, give relief, or lessen the period of plaintiff\u2019s disability.\u201d The Commission also awarded plaintiff $2,000.00 in attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88. Defendant appeals.\nII.Issues\nDefendant argues the Commission erred by: (1) concluding plaintiff is permanently and totally disabled and (2) awarding plaintiff attorney\u2019s fees.\nIII.Standard of Review\nDefendant set out thirty-six assignments of error in the record on appeal. Defendant assigned error to all but three of the Commission\u2019s thirty-four findings of fact. \u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d N.C.R. App. P. 28(b)(6) (2007) (emphasis supplied); see Animal Legal Defense Fund v. Woodley, 181 N.C. App. 594, 597, 640 S.E.2d 777, 779 (2007) (\u201c[W]e will not review defendants\u2019 unargued assignments of error.\u201d).\nOur Supreme Court has stated:\n[W]hen reviewing Industrial Commission decisions, appellate courts must examine \u201cwhether any competent evidence supports the Commission\u2019s findings of fact and whether [those] findings . . . support the Commission\u2019s conclusions of law.\u201d The Commission\u2019s findings of fact are conclusive on appeal when supported by such competent evidence, \u201ceven though there [is] evidence that would support findings to the contrary.\u201d\nMcRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (quoting Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000); Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965)). \u201cThe full Commission is the sole judge of the weight and credibility of the evidence[.]\u201d Deese, 352 N.C. at 116, 530 S.E.2d at 553.\nIV.Total Disability\nA. Matters Preserved for Appellate Review\nBy defendant\u2019s first argument, it argues the Commission erred by concluding plaintiff was permanently and totally disabled because there was no competent evidence that: (1) he was incapable of earning wages in the same employment; (2) he was incapable of earning the same wages in any other employment; and (3) plaintiff\u2019s inability to earn the same wages is due to his work-related injury. Defendant\u2019s argument is the Commission\u2019s finding of fact number thirty is not supported by competent evidence. The Commission found as fact:\n30. Beginning November 15, 2001, and thereafter, plaintiff has been unable to earn the wages he was earning at the time of his injury in the same or any other employment due to his accidental injuries of August 9, 2001.\nWithin this broad argument, defendant also specifically .argues the Commission\u2019s findings of fact numbered 9, 28, and 34 are not supported by competent evidence. The Commission found as fact:\n9. Plaintiff was unable to perform the required normal work duties of a pressman and a forklift operator for the defendant due to his August 9 injuries during the period August 9, 2001, through November 14, 2001, when he last worked for the defendant, which closed its plant on that date and laid off its employees.\n28. During the period of December 12, 2001, through May 28, 2003, plaintiff made a diligent but unsuccessful effort to find employment suitable to his limited work capacities, that is, suitable to use of his right hand with limited ability to use his left hand.\n34. In light of plaintiff\u2019s advanced age, his high school education level, his work history primarily as a printing press operator, and his permanent limitation to work activities using his right hand primarily and his left hand as a gross assist, plaintiff is entitled to be paid permanent total disability and medical compensation for his injuries during his lifetime.\nDefendant\u2019s assignments of error to the Commission\u2019s other findings of fact, not argued in its brief, are deemed abandoned. N.C.R. App. P. 28(b)(6) (2007) (\u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d). The Commission\u2019s findings of fact that defendant failed to argue in its brief are binding on appeal. See Willen v. Hewson, 174 N.C. App. 714, 718, 622 S.E.2d 187, 190 (2005) (\u201c[Defendant assigned error to numerous findings of fact by the trial court, but has failed to argue any of these assignments of error in her brief on appeal. Such assignments of error are therefore abandoned, and the trial court\u2019s findings are binding on appeal.\u201d), disc. rev. denied, 360 N.C. 491, 631 S.E.2d 520 (2006).\nB. Finding of Fact Numbered 9\nDefendant argues the Commission\u2019s finding of fact numbered 9 that \u201cplaintiff was unable to perform the required work duties of a pressman and a forklift operator for the defendant\u201d was hot supported by competent evidence. We disagree.\nThe Commission found as fact:\n9. Plaintiff was unable to perform the required normal work duties of a pressman and a forklift operator for the defendant due to his August 9 injuries during the period August 9, 2001, through November 14, 2001, when he last worked for the defendant, which closed its plant on that date and laid off its employees.\n(Emphasis supplied).\nPlaintiff worked as a press operator with defendant for twenty-two years. Plaintiffs normal work duties involved \u201csetting up eleven different units on the printing press.\u201d Plaintiff testified he used his hands \u201call day ... to perform the duties of a press operator\u201d and that the job required the use of both his left and right hands. Plaintiff also operated a forklift to obtain his own stock. Plaintiff testified he used both his left and right hands to operate the forklift.\nAfter plaintiffs injury, he was restricted to \u201cno repetitive use\u201d of his left hand. John Bacon, defendant\u2019s director of manufacturing, testified plaintiff was assigned job duties \u201cwithin his restrictions.\u201d Plaintiff sharpened wheels, operated a forklift to obtain stock for the pressman, and used a push broom with only his right hand to keep his work area clean. Plaintiff testified he could not operate the forklift in his normal manner.\nPlaintiff also presented medical evidence he was \u201cunable to perform the required normal work duties of a pressman and a forklift operator\u201d from 9 August 2001 through 14 November 2001. Plaintiff presented to Lelia Gentry (\u201cGentry\u201d), a physician\u2019s assistant at PrimeCare Occupational Medicine on 9 August 2001. Gentry limited plaintiff to no repetitive use of his left hand and placed him in a splint. These restrictions continued until October 2001, when plaintiff was referred to an orthopedist.\nOn 20 August 2001, Gentry ordered physical therapy for plaintiff. On 6 September 2001, the therapist noted plaintiffs overall condition was \u201cworse\u201d and that plaintiff \u201cused L[eft] hand to pull and had sharp pain in the wrist and now pain up into elbow.\u201d On 11 September 2001, the therapist noted: (1) plaintiffs pain had \u201cincreased\u201d in his left \u201cthumb & radial side of wrist\u201d and (2) plaintiff \u201cwoke this am w/[left shoulder] stiffness, [left] elbow pain & [left] wrist & thumb.\u201d\nThe Commission\u2019s finding of fact that \u201c[p]laintiff was unable to perform the required normal work duties of a pressman and a forklift operator\u201d from 9 August 2001 through 14 November 2001 is supported by competent evidence. The Commission\u2019s findings of fact are \u201cconclusive on appeal\u201d when supported by \u201cany competent evidence.\u201d McRae, 358 N.C. at 496, 597 S.E.2d at 700. This assignment of error is overruled.\nC. Finding of Fact Numbered 28\nDefendant also argues the Commission\u2019s finding of fact numbered 28 is not supported by competent evidence. Defendant asserts the Commission\u2019s conclusive finding that plaintiff engaged in a diligent job search is not supported by competent evidence. We disagree.\nThe Commission found:\n28. During the period of December 12, 2001, through May 28, 2003, plaintiff made a diligent but unsuccessful effort to find employment suitable to his limited work capacities, that is, suitable to use of his right hand with limited ability to use his left hand.\nPlaintiff has not earned any wages since 14 November 2001. Plaintiff testified he: (1) applied for employment with seventy-five different employers; (2) found these potential employers \u201c[i]n classified ads in the paper, yellow pages, on the internet and places (sic) knew about and places a friend had told [him] about;\u201d and (3) applied in person to some of the employers and by mail to others. Plaintiff also admitted into evidence job search logs from 12 December 2001 to 28 August 2002 and 21 November 2002 to 28 May 2003.\nThe Commission\u2019s finding that plaintiff engaged in a diligent job search is supported by competent evidence. The Commission\u2019s findings of fact are \u201cconclusive on appeal\u201d when supported by \u201cany competent evidence.\u201d McRae, 358 N.C. at 496, 597 S.E.2d at 700. This assignment of error is overruled.\nD. Findings of Fact Numbered 30 and 34\nDefendant also argues the Commission erred by concluding plaintiff is permanently and totally disabled. Defendant asserts the Commission\u2019s findings of fact numbered 30 and 34 are not supported by competent evidence and the Commission erred in awarding plaintiff permanent total disability because he failed to carry his burden to prove disability set out by our Supreme Court in Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982). We disagree.\n1. Applicable Law\nUnder North Carolina\u2019s Workers\u2019 Compensation Act, \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. Gen. Stat. \u00a7 97-2(9) (2005) (emphasis supplied). \u201cIn order to obtain compensation under the Workers\u2019 Compensation Act, the claimant has the burden of proving the existence of his disability and its extent.\u201d Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986).\nOur Supreme Court has stated:\n[I]n order to support a conclusion of disability, the Commission must find: (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 this individual\u2019s incapacity to earn was caused by plaintiff\u2019s injury.\nHilliard, 305 N.C. at 595, 290 S.E.2d at 683 (emphasis supplied) (internal citation omitted).\nHere, the Commission made the required finding under Hilliard:\n30. Beginning November 15, 2001, and thereafter, plaintiff has been unable to earn the wages he was earning at the time of his injury in the same or any other employment due to his accidental injuries of August 9, 2001.\nThe question is whether the plaintiff met his burden to prove all three of these Hilliard factors. See Coppley v. PPG Indus., Inc., 133 N.C. App. 631, 635, 516 S.E.2d 184, 187 (1999) (\u201c[T]he Commission\u2019s findings must sufficiently reflect that [the] plaintiff produced evidence to prove all three Hilliard factors.\u201d).\n2. Analysis\nDefendant argues the Commission erred in finding as fact the first and second Hilliard elements. Hilliard, 305 N.C. at 595, 290 S.E.2d at 683. We disagree.\nIn Russell v. Lowes Product Distribution, this Court set out four separate and distinct ways a plaintiff could meet his burden to prove the first two Hilliard factors:\nThe burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment. The employee may meet this burden in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.\n108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (emphasis supplied) (internal citations omitted).\nThis Court has also stated:\n[T]his Court has clearly outlined different methods that a plaintiff may employ to prove total loss of wage-earning capacity, and thus, entitlement to total disability benefits under N.C. Gen. Stat. \u00a7 97-29 (1999). See Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993). One such method is by \u201cthe production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment.\u201d Id. at 765, 425 S.E.2d at 457.\nZimmerman v. Eagle Elec. Mfg. Co., 147 N.C. App. 748, 752-53, 556 S.E.2d 678, 680-81 (2001) (Plaintiff met her burden of proving total and permanent disability through medical testimony \u201cregarding the extent of her physical limitations\u201d and evidence plaintiff unsuccessfully sought numerous jobs.).\nHere, the Commission under the second Russell factor found:\n28. During the period of December 12, 2001, through May 28, 2003, plaintiff made a diligent but unsuccessful effort to find employment suitable to his limited work capacities, that is, suitable to use of his right hand with limited ability to use his left hand.\nHere, plaintiff, like the plaintiff in Zimmerman, satisfied his burden to prove the first two Hilliard factors through medical testimony \u201cregarding the extent of [his] physical limitations\u201d and evidence plaintiff unsuccessfully sought numerous jobs. Id. The Commission found in uncontested findings of fact the extent of plaintiffs physical limitations:\n12. On April 15, 2002, physical therapist Lois Maple with Dr. Taft\u2019s office, and at Dr. Taft\u2019s.request, evaluated plaintiff\u2019s ability to use his left hand to perform work duties. This evaluation revealed that plaintiff was limited to using his left hand as a gross assist to his dominant right hand, due to pain and weakness in his left hand and arm.\n17. On November 13, 2002, Dr. Taft saw plaintiff again at defendant\u2019s request and reviewed Dr. Poehling\u2019s evaluation notes and the bone scan. At that time, Dr. Taft wrote that in his opinion plaintiff had reached maximum medical improvement with a 25 percent permanent impairment to his left thumb.\n20. Plaintiff suffers from the following symptoms due to his injuries of August 9, 2001: (a) moderate to severe left hand or wrist pain made worse with use; (b) nocturnal awakenings due to left hand and arm pain; (c) left hand and left thumb weakness; (d) difficulty using his left hand to handle small objects; (e) moderate difficulty with activities of daily living due to left hand pain and weakness; (f) left shoulder and arm pain made worse with use.\n21. On April 13, 2004, Dr. Poehling operated on plaintiff\u2019s left thumb, a carpometacarpal fusion using Acutak screw procedure. The surgery provided significant pain relief at plaintiff\u2019s CMC joint. By July 22, 2004, plaintiff reached maximum medical improvement concerning his left thumb and hand injuries of August 9, 2001. Plaintiff\u2019s left hand grip strength is diminished by about 60% due to his inability to squeeze with his left thumb. Plaintiff has significant loss of sensation in his left thumb. Plaintiff has suffered a 40% permanent partial loss to his left hand as a result of his August 9, 2001, injury by accident.\n25. Plaintiff\u2019s pain complaints concerning his left hand, left arm, and left shoulder are genuine. The pain is moderate to severe in intensity and made worse with any activity.\n26. Plaintiff retains a 7% permanent loss to his left arm as a result of his August 9, 2001, injury by accident.\nCompetent evidence also shows plaintiff unsuccessfully sought numerous jobs. As stated above, the' Commission\u2019s finding'of fact twenty-eight is supported by competent evidence and is \u201cconclusive on appeal.\u201d McRae, 358 N.C. at 496, 597 S.E.2d at 700.\nPlaintiff met his burden of proving total and permanent disability through medical testimony \u201cregarding the extent of [his] physical limitations\u201d and evidence plaintiff unsuccessfully sought numerous jobs. Zimmerman, 147 N.C. App. at 752-53, 556 S.E.2d at 680-81. The Commission properly found in finding of fact number thirty that plaintiff proved the first and second Hilliard elements. Hilliard, 305 N.C. at 595, 290 S.E.2d at 683. Defendant\u2019s assignment of error is overruled.\nDefendant asserts the Commission erred in finding the second Hilliard factor that plaintiff is incapable of earning the same wages in any other employment because the Commission\u2019s finding of fact number thirty-four is not supported by competent evidence. Id. Defendant contends no physician has testified plaintiff is not physically capable of performing work using his left hand. We disagree.\nLike in Zimmerman, defendant is arguing the Commission erred in finding plaintiff totally and permanently disabled \u201cbased on the assertion that no doctor testified unequivocally that plaintiff is capable of no work whatsoever.\u201d 147 N.C. App. at 753, 556 S.E.2d at 681. \u201cDefendantf] appear[s] to be assuming that the only way to prove total disability is by medical evidence.\u201d Id. at 752, 556 S.E.2d at 681. As stated above, plaintiff met his burden of proving total and permanent disability through medical testimony \u201cregarding the extent of [his] physical limitations\u201d and evidence plaintiff unsuccessfully sought numerous jobs. Id. at 752-53, 556 S.E.2d at 680-81. Defendant\u2019s assignment of error is overruled.\nDefendant also argues the Commission erred in finding as fact the third Hilliard element that plaintiffs \u201cincapacity to earn was caused by plaintiffs injury.\u201d 305 N.C. at 595, 290 S.E.2d at 683. Defendant asserts \u201cplaintiffs failure to obtain a new printing job is due to the dearth of jobs available in the printing industry.\u201d We disagree.\nIn part of finding of fact thirty-two, the Commission found as fact:\n32. ... Plaintiff has been very diligent in his job search activities and in his efforts to overcome defendant\u2019s resistance to providing him with the medical care he needs. The Full Commission finds as contrary to fact defendant\u2019s position that plaintiff\u2019s inability to obtain employment is the same as it is for any of the other press operators] laid off by [defendant] in November 2001 \u2014 the general economic downturn which struck [defendant] and the printing industry in general.\nThe Commission\u2019s uncontested finding of fact is supported by competent evidence and is \u201cconclusive on appeal.\u201d McRae, 358 N.C. at 496, 597 S.E.2d at 700. Defendant\u2019s assignment of error is overruled.\nPlaintiff met his burden to prove all three of these Hilliard factors. Coppley, 133 N.C. App. at 635, 516 S.E.2d at 187; Hilliard, 305 N.C. at 595, 290 S.E.2d at 683. The Commission\u2019s findings are supported by competent evidence and the findings support the conclusion of law plaintiff is entitled to total disability compensation benefits.\nV. Attorney\u2019s Fees\nDefendant also properly assigned error to and argues the Commission\u2019s award of plaintiff\u2019s attorney fees pursuant to N.C. Gen. Stat. \u00a7 97-88 (2005). Defendant asserts the Commission could not award plaintiff his attorney fees pursuant to N.C. Gen. Stat. \u00a7 97-88 because it never pefected its appeal to the Commission and the issues on appeal before the Commission were brought exclusively by plaintiff. We agree.\nThe Commission stated in its award to plaintiff:\n5. The costs shall include a $2,000.00 reasonable attorney\u2019s fee to be paid to plaintiff\u2019s counsel by defendant pursuant to N.C. Gen. Stat. \u00a7 97-88. Defendant appealed and the Full Commission by this Opinion and Award orders compensation to be paid to plaintiff.\nN.C. Gen. Stat. \u00a7 97-88 states:\nIf the Industrial Commission at a hearing on review or any court before which any proceedings are brought on appeal under this Article, shall find that such hearing or proceedings were brought by the insurer and the Commission or court by its decision orders the insurer to make, or to continue payments of benefits, including compensation for medical expenses, to the injured employee, the Commission or court may further order that the cost to the injured employee of such hearing or proceedings including therein reasonable attorney\u2019s fee to be determined by the Commission shall be paid by the insurer as a part of the bill of costs.\n(Emphasis supplied). Our Supreme Court has stated, \u201cIt is clear that this section of the statute is applicable only when such hearings or proceedings are brought by the insurer and the court orders the insurer to make or to continue payments of compensation to the injured employee.\u201d Bowman v. Chair Co., 271 N.C. 702, 705, 157 S.E.2d 378, 380 (1967) (emphasis supplied).\nHere, plaintiff initially noticed appeal of Deputy Gregory\u2019s opinion and award to the Commission, by giving notice of his request for review by the Commission in a letter dated 15 July 2003. Defendant filed its notice of appeal to the Commission on 29 July 2003. Defendant did not file a Form 44 Application for Review with the Commission and never perfected nor pursued its appeal. All issues before and addressed by the Commission \u201cat a hearing on review\u201d were solely the issues plaintiff appealed. N.C. Gen. Stat. \u00a7 97-88.\nThe Commission in its opinion and award stated, \u201cDefendant abandoned its appeal by failing to state with particularity the specific grounds of its appeal[.]\u201d All \u201chearings or proceedings\u201d before the Commission \u201cat a hearing on review\u201d were brought solely by plaintiff, not defendant. Bowman, 271 N.C. at 705, 157 S.E.2d at 380; N.C. Gen. Stat. \u00a7 97-88. The Commission erred by awarding attorney fees to \u201cbe paid by the insurer\u201d pursuant to N.C. Gen. Stat. \u00a7 97-88. The Commission\u2019s award of attorney\u2019s fees is erroneous and is reversed.\nThe dissenting opinion asserts plaintiff is entitled to attorney\u2019s fees before the Commission and cites cases where this Court has ordered attorney\u2019s fees to be paid and remanded the Commission for a determination of the appropriate amount of fees. None of those cases cited therein apply to the issue before us. On 14 February 2007, plaintiff moved this Court for costs and an award of attorney\u2019s fees pursuant to N.C.R. App. P. 34(a) and N.C. Gen. Stat. \u00a7 97-88. By order entered 22 May 2007, this panel of judges unanimously denied plaintiffs motion.\nVI. Conclusion\nPlaintiff met his burden to prove all three Hilliard factors. Coppley, 133 N.C. App. at 635, 516 S.E.2d at 187; Hilliard, 305 N.C. at 595, 290 S.E.2d at 683. The Commission\u2019s findings are supported by competent evidence and the findings support the conclusion of law plaintiff is entitled to total disability compensation benefits.\nThe \u201chearings or proceedings\u201d before the Commission were brought by plaintiff, not defendant. Bowman, 271 N.C. at 705, 157 S.E.2d at 380. The Commission erred by awarding attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88. The Commission\u2019s award of attorney\u2019s fees is reversed.\nAffirmed in Part and Reversed in Part.\nJudge CALABRIA concurs.\nJudge WYNN concurs in part and dissents in part by separate opinion.", "type": "majority", "author": "TYSON, Judge." }, { "text": "WYNN, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority in affirming the Full Commission\u2019s award of total disability benefits to Mr. Myers. However, because I conclude that BBF Printing Solutions\u2019s abandonment of its appeal does not altogether negate its existence, I would affirm the Commission\u2019s award of attorney\u2019s fees to Mr. Myers. From that portion of the majority\u2019s opinion, I therefore respectfully dissent.\nNorth Carolina General Statute \u00a7 97-88 refers to the Industrial Commission\u2019s \u201cfind[ing] that such hearing or proceedings were brought by the insurer\u201d as a necessary step to ordering the insurer to pay attorney\u2019s fees in an appeal from an award by the Commission. N.C. Gen. Stat. \u00a7 97-88 (2005). This Court has clarified that attorney\u2019s fees could be awarded under Section 97-88 \u201cif (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 Univ., 117 N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994) (emphasis added). Moreover, we have also concluded that 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) (emphasis added).\nAdditionally, we have previously held that the statutory requirements of N.C. Gen. Stat. \u00a7 97-88 are met when the defendant appeals the Full Commission\u2019s award of benefits to this Court, and this Court affirms the award. Brown v. Public Works Comm\u2019n, 122 N.C. App. 473, 477, 470 S.E.2d 352, 354 (1996). In our own discretion, we have ordered attorney\u2019s fees to be paid in a number of such cases, generally remanding to the Full Commission for a determination of the appropriate amount of fees. See, e.g., Brooks v. Capstar Corp., 168 N.C. App. 23, 30-31, 606 S.E.2d 696, 701, appeal dismissed, 360 N.C. 60, 621 S.E.2d 170 (2005); Cox v. City of Winston-Salem, 157 N.C. App. 228, 238, 578 S.E.2d 669, 677 (2003); Brown, 122 N.C. App. at 477, 470 S.E.2d at 354; Estes, 117 N.C. App. at 129, 449 S.E.2d at 765 (1994); Poplin v. PPG Indus., 108 N.C. App. 55, 57-58, 422 S.E.2d 353, 355 (1992).\nHere, BBF Printing Solutions did, in fact, appeal Deputy Commissioner Gregory\u2019s award of medical compensation to Mr. Myers; however, their failure to \u201cstate with particularity the specific grounds\u201d of the appeal then led to its being dismissed as abandoned. Moreover, the Full Commission noted that, even though BBF Printing Solutions had abandoned their appeal, the company also \u201ccontinued to delay medical treatment.\u201d In its final Opinion and Award, the Full Commission again ordered BBF Printing Solutions to pay the expenses related to the medical treatment of Mr. Myers\u2019s compensable injury.\nThus, under the plain language of previous precedents of this Court, BBF Printing Solutions \u201chas appealed\u201d to the Full Commission, and the Commission, in turn, \u201cordered the insurer to make, or continue making, payments of benefits to the employee.\u201d Estes, 117 N.C. App. at 128, 449 S.E.2d at 764. Our decision here, affirming the Full Commission, likewise orders BBF Printing Solutions to \u201cmake, or continue making, payments of benefits\u201d to Mr. Myers. The appeal by BBF Printing Solutions to the Full Commission was abandoned, not withdrawn, and their appeal to this Court failed; both were there fore \u201cunsuccessful appeal[s].\u201d See Rackley, 153 N.C. App. at 475, 570 S.E.2d at 125. Accordingly, Mr. Myers should be entitled to attorney\u2019s fees if so ordered by the Full Commission. I would therefore affirm the Full Commission\u2019s award.\n. I note, too, that we review an award of attorney\u2019s fees by the Full Commission for an abuse of discretion. See Taylor v. J.P. Stevens Co., 307 N.C. 392, 394, 298 S.E.2d 681, 683 (1983) (\u201cIn the absence of an abuse of discretion the Commission\u2019s denial of attorneys\u2019 fees will not be disturbed.\u201d). Given the Commission\u2019s conclusion that BBF Printing Solutions abandoned its appeal yet \u201ccontinued to delay medical treatment\u201d for Mr. Myers, I see no abuse of discretion in their decision to award attorney\u2019s fees to Mr. Myers.", "type": "concurring-in-part-and-dissenting-in-part", "author": "WYNN, Judge," } ], "attorneys": [ "Walden & Walden, by Daniel S. Walden, for plaintiff-appellee.", "Jane C. Jackson and W. Mark Peck, for defendant-appellant." ], "corrections": "", "head_matter": "BILLY MYERS, Employee, Plaintiff v. BBF PRINTING SOLUTIONS (formerly Wesley Business Forms), Employer, SELF-INSURED, Defendant\nNo. COA06-1298\n(Filed 19 June 2007)\n1. Workers\u2019 Compensation\u2014 disability \u2014 employer going ont of business\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff was permanently and totally disabled where plaintiff injured a thumb and wrist in a printing press, defendant went out of business while plaintiff was working in a limited capacity, and plaintiff was unable to find other employment.\n2. Workers\u2019 Compensation\u2014 attorney fees \u2014 insurer not perfecting appeal\nThe Industrial Commission in a workers\u2019 compensation case could not award plaintiff attorney fees under N.C.G.S. \u00a7 97-98 (which allows the award of attorney fees in proceedings brought by the insurer) because defendant did not perfect or pursue its appeal, and the issues addressed by the Commission were solely the issues plaintiff appealed.\nJudge Wynn concurring in part and dissenting in part.\nAppeal by defendant from opinion and award entered 13 July 2006 by Commissioner Thomas J. Bolch for the North Carolina Industrial Commission. Heard in the Court of Appeals 22 May 2007.\nWalden & Walden, by Daniel S. Walden, for plaintiff-appellee.\nJane C. Jackson and W. Mark Peck, for defendant-appellant." }, "file_name": "0192-01", "first_page_order": 224, "last_page_order": 238 }