{ "id": 8549627, "name": "EDDIE GAMBLE v. BORDEN, INC.", "name_abbreviation": "Gamble v. Borden, Inc.", "decision_date": "1980-03-04", "docket_number": "No. 7910IC628", "first_page": "506", "last_page": "510", "citations": [ { "type": "official", "cite": "45 N.C. App. 506" } ], "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": "232 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "452" } ], "opinion_index": 0 }, { "cite": "292 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567907 ], "year": 1977, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0210-01" ] }, { "cite": "249 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "400" }, { "page": "400" } ], "opinion_index": 0 }, { "cite": "296 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564713 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "92" }, { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0088-01" ] }, { "cite": "162 S.E. 2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "620" } ], "opinion_index": 0 }, { "cite": "2 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551409 ], "year": 1968, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/nc-app/2/0126-01" ] }, { "cite": "90 S.E. 2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "243 N.C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625440 ], "year": 1956, "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0422-01" ] }, { "cite": "176 S.E. 2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "30" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549953 ], "year": 1970, "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0291-01" ] } ], "analysis": { "cardinality": 470, "char_count": 9858, "ocr_confidence": 0.823, "pagerank": { "raw": 3.7209352579285494e-07, "percentile": 0.8938532709822078 }, "sha256": "76d1c517e8a75bf7d2814c4efd5e4b79c32cb7eab759af877a7a62da59162cc8", "simhash": "1:b165620b3932cadb", "word_count": 1567 }, "last_updated": "2023-07-14T22:44:38.339487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ERWIN and WELLS concur." ], "parties": [ "EDDIE GAMBLE v. BORDEN, INC." ], "opinions": [ { "text": "MARTIN (Robert M.), Judge.\nThe critical fact in issue is the duration of plaintiff\u2019s total disability. \u201cThe question of whether there has been a total and permanent disability resulting from a loss of mental capacity caused by or resulting from an injury to the brain is one of fact.\u201d Priddy v. Cab. Co., 9 N.C. App. 291, 297, 176 S.E. 2d 26, 30 (1970). Duration is a critical finding necessary to support a compensation award under G.S. 97-29 and 30 which provide \u201c[c]ompensation for disability, dependent as to amount upon whether the injury produces a permanent total, a permanent partial, a total temporary or a partial temporary incapacity.\u201d Watts v. Brewer, 243 N.C. 422, 423, 90 S.E. 2d 764, 766 (1956). 2 A. Larson, The Law of Workmen\u2019s Compensation \u00a7 57.10 (1976). Hence under the traditional four-way classification of disabilities, a total disability under G.S. 97-29 must be either permanent or temporary.\nThe terms permanent and temporary are not defined in the North Carolina Worker\u2019s Compensation Act. However, the Industrial Commission in its Twenty-Fourth Biennial Report for 1974-75, 1975-76 provides the following definitions: \u201cPermanent Total Case: A permanent total case is one in which an employee sustains an injury which results in his inability to function in any work-related capacity at any time in the future.\u201d \u201cTemporary Total Case: A temporary total case is one in which the employee is temporarily unable to perform any work duties.\u201d Larson defines permanent as \u201clasting the rest of claimant\u2019s life. A condition that, according to available medical opinion, will not improve during the claimant\u2019s lifetime is deemed a permanent one. If its duration is merely uncertain, it cannot be found to be permanent.\u201d A. Larson, supra, n. 7.\n\u201c[S]pecific findings by the Commission with respect to the crucial facts, upon which the question of plaintiff\u2019s right to compensation depends, are required.\u201d (Citations omitted) Morgan v. Furniture Industries, Inc., 2 N.C. App. 126, 128, 162 S.E. 2d 619, 620 (1968). \u201cIf the findings of fact of the Commission are insufficient to enable the court to determine the rights of the parties upon matters in controversy, the proceeding must be remanded for the Commission to make proper findings.\u201d (Citation omitted) Perry v. Furniture Co., 296 N.C. 88, 92, 249 S.E. 2d 397, 400 (1978). In its findings of fact, the Commission found only that \u201cat the time of the hearing on April 4, 1978 he was totally disabled . . .\u201d This finding is insufficient on the crucial fact of duration upon which plaintiff\u2019s right to compensation depends and is insufficient to support an award of compensation. However, although the Commission did not expressly find that plaintiff\u2019s disability is temporary, that finding is implicit in the Commission\u2019s opinion and award taken as a whole. The Commission in deleting \u201cpermanent\u201d from the Deputy Commissioner\u2019s finding of fact and conclusion of law, in referring in its opinion to plaintiff\u2019s case as one \u201cwherein no one knows what the future holds\u201d and in concluding that defendants owe plaintiff compensation \u201cuntil plaintiff is tendered or obtains work suitable to his capacity or has a change in condition\u201d has, in effect, found that the duration of plaintiff\u2019s disability is temporary. We, therefore, elect to treat the Commission\u2019s finding that plaintiff was totally disabled on the day of the hearing as a finding of temporary total disability.\nHaving made this determination, we must now apply the pertinent legal principles to the evidence and findings of the Commission. \u201c[Jurisdiction of appellate courts on appeal from an award of the Industrial Commission is limited to the questions (1) whether there was competent evidence before the Commission to support its findings and (2) whether such findings support its legal conclusions.\u201d (Citations omitted) Perry v. Furniture Co., 296 N.C. 88, 92, 249 S.E. 2d 397, 400 (1978). \u201cThe courts may set aside findings of fact only upon the ground they lack evidentiary support (Citations omitted). The court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u201d (Citations omitted) Inscoe v. Industies, Inc., 292 N.C. 210, 215, 232 S.E. 2d 449, 452 (1977).\nExamining the evidence before the Commission on the issue of the duration of plaintiff\u2019s disability, we hold that the evidence does not support a finding that plaintiff\u2019s disability is temporary. Dr. Stevenson testified:\nIn response to the question of the probable duration of his condition at the time of my last examination of him, Mr. Gamble\u2019s condition to date has been almost downhill. I would conclude that his disability is probably permanent. Based upon my examination and conversations and treatment of Mr. Gamble, it is my opinion that the probable duration of Mr. Gamble\u2019s disability to work is permanent.\nDr. Lockhart testified:\nIt is my opinion from my examination of Mr. Gamble that he is not able to work and that he is permanently disabled for work. My opinion as to the probable duration of the disability to work is that he is permanently disabled from work.\nThere is no conflicting evidence in the record on the duration of plaintiff\u2019s disability nor is there evidence that plaintiff\u2019s condition will improve. In no reasonable view of the evidence before the Commission is the duration of plaintiff\u2019s disability any less than permanent. Therefore, the Commission erred in failing to find that plaintiff is permanently and totally disabled.\nThe case is remanded to the Industrial Commission for entry of an award in accordance with this opinion.\nReversed and remanded.\nJudges ERWIN and WELLS concur.", "type": "majority", "author": "MARTIN (Robert M.), Judge." } ], "attorneys": [ "Bryant, Bryant, Drew and Crill, by Lee A. Patterson II, for plaintiff appellant.", "Young, Moore, Henderson & Alvis, by B. T. Henderson II, for defendant appellee." ], "corrections": "", "head_matter": "EDDIE GAMBLE v. BORDEN, INC.\nNo. 7910IC628\n(Filed 4 March 1980)\nMaster and Servant \u00a7 94.1\u2014 workmen\u2019s compensation \u2014 permanent disability \u2014 evidence uncontradicted \u2014 finding of temporary disability erroneous\nWhere the Industrial Commission deleted the word \u201cpermanent\u201d from the Deputy Commissioner\u2019s finding of fact and conclusion of law and in its opinion referred to plaintiff\u2019s case as one \u201cwherein no one knows what the future holds\u201d and concluded that defendants owed plaintiff compensation \u201cuntil plaintiff is tendered or obtains work suitable to his capacity or has a change in condition,\u201d the Industrial Commission in effect found that the duration of plaintiff\u2019s disability was temporary, but such finding was erroneous since plaintiff\u2019s uncontradicted evidence was that he was permanently disabled and that his condition likely would not improve.\nAppeal by plaintiff from an Order and Award of the North Carolina Industrial Commission filed 26 March 1979. Heard in the Court of Appeals 30 January 1980.\nIt was stipulated that the plaintiff was injured on 23 September 1976 by an accident arising out of and in the course of his employment with defendant Borden, Inc.; that the case is one of admitted compensability and that plaintiff receive compensation at the rate of $146.00 per week.\nPlaintiff\u2019s evidence tended to show that on 23 September 1976 plaintiff was driving a truck as a salesman and deliveryman for Borden, Inc. when he swerved to avoid an on-coming vehicle. Plaintiff was thrown from the truck and knocked unconscious. Plaintiff was found by Dr. Walter S. Lockhart to have ligamen-tous injury of the cervical spine, lumbosacral sprain, multiple contusions and cerebral concussion. Plaintiff has continued to suffer from constant back pain, headaches, dizziness and severe anxiety and depression and has been unable to return to work. Prior to the accident, plaintiff was a responsible and praiseworthy employee. Because of severe anxiety and depression suffered by plaintiff, Dr. Lockhart referred plaintiff to Dr. Karl Stevenson, a psychiatrist. Dr. Stevenson first saw plaintiff on 24 December 1976 and was treating plaintiff continuously at the time of the hearing before the Industrial Commission. Dr. Stevenson diagnosed plaintiff\u2019s injury as \u201cpost-traumatic syndrome, traumatic neurosis\u201d resulting from the concussion. Both Dr. Stevenson and Dr. Lockhart testified at the hearing with respect to plaintiff\u2019s injuries.\nOn 29 August 1978 Deputy Commissioner Denson filed an opinion and award in which she made findings of fact including fact No. 4 as follows: \u201c4. Plaintiff suffers from post-traumatic syndrome, traumatic neurosis, as a result of the injury giving rise hereto and is permanently and totally disabled as a result thereof.\u201d Based on the finding of fact, Deputy Commissioner Den-son made the following conclusion of law: \u201c2. Defendants owe plaintiff compensation at the rate of $146.00 per week for plaintiff\u2019s lifetime because of the permanent total disability. G.S. 97-29.\u201d The Deputy Commissioner awarded plaintiff \u201ccompensation at the rate of $146.00 per week for plaintiff\u2019s lifetime.\u201d\nDefendant appealed. The full Commission amended and revised Deputy Commissioner\u2019s finding of fact No. 4 to the effect that: \u201cPlaintiff suffers from post-traumatic syndrome, traumatic neurosis, as a result of the injury giving rise hereto and at the time of the hearing on April 4, 1978 he was totally disabled as a result thereof.\u201d The full Commission revised conclusion No. 2 to the effect that: \u201cDefendants owe plaintiff compensation at the rate of $146.00 per week until plaintiff is tendered or obtains work suitable to his capacity or has a change in his condition. G.S. 97-29; G.S. 97-32; G.S. 97-47.\u201d and revised the award to the effect that compensation be paid \u201cuntil further order of this Commission.\u201d\nFrom the opinion and award of the full Commission, plaintiff appealed.\nBryant, Bryant, Drew and Crill, by Lee A. Patterson II, for plaintiff appellant.\nYoung, Moore, Henderson & Alvis, by B. T. Henderson II, for defendant appellee." }, "file_name": "0506-01", "first_page_order": 534, "last_page_order": 538 }