{ "id": 8564809, "name": "ELVA L. LITTLE v. ANSON COUNTY SCHOOLS FOOD SERVICE and TRAVELERS INSURANCE COMPANY", "name_abbreviation": "Little v. Anson County Schools Food Service", "decision_date": "1978-08-29", "docket_number": "No. 8", "first_page": "527", "last_page": "534", "citations": [ { "type": "official", "cite": "295 N.C. 527" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "236 S.E. 2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": -1 }, { "cite": "33 N.C. App. 742", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552515 ], "year": 1977, "opinion_index": -1, "case_paths": [ "/nc-app/33/0742-01" ] }, { "cite": "221 S.E. 2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567848 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0254-01" ] }, { "cite": "191 S.E. 345", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1937, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "211 N.C. 600", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628251 ], "year": 1937, "pin_cites": [ { "page": "601-02" } ], "opinion_index": 0, "case_paths": [ "/nc/211/0600-01" ] }, { "cite": "22 S.E. 2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "222 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629768 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/222/0257-01" ] }, { "cite": "90 S.E. 2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "243 N.C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625440 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0422-01" ] }, { "cite": "75 S.E. 2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617436 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0660-01" ] }, { "cite": "139 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572007 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0569-01" ] }, { "cite": "64 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608280 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0372-01" ] }, { "cite": "214 S.E. 2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561360 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0219-01" ] } ], "analysis": { "cardinality": 736, "char_count": 16754, "ocr_confidence": 0.831, "pagerank": { "raw": 1.5303054490315466e-06, "percentile": 0.9920508879089089 }, "sha256": "00220a7f3d0e17e530c8b4bd5604ce2f4b9a98b4910293f094895a05eb79f95d", "simhash": "1:5739e56f101f3349", "word_count": 2729 }, "last_updated": "2023-07-14T14:50:00.775554+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ELVA L. LITTLE v. ANSON COUNTY SCHOOLS FOOD SERVICE and TRAVELERS INSURANCE COMPANY" ], "opinions": [ { "text": "HUSKINS, Justice.\nBy her first, second and fourth assignments of error plaintiff challenges the correctness of the decision of the Court of Appeals affirming the Commission\u2019s determination that she has suffered a \u201cpermanent partial disability of 45% or loss of use of her back\u201d which entitles her to receive compensation equal to two-thirds of her average weekly wage for a period of 135 weeks pursuant to G.S. 97-31(23).\nG.S. 97-31 provides in pertinent part: \u201cIn cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation, including disfigurement, to wit: . . . (23) For the total loss of use of the back, sixty-six and two-thirds percent (66%%) of the average weekly wages during 300 weeks. The compensation for partial loss of use of the back shall be such proportion of the periods of payment herein provided for total loss as such partial loss bears to total loss . . . .\u201d\nWe have reviewed the testimony of Drs. Greenhoot and Mahaley and find no support for the conclusion that plaintiff has suffered a 45 percent loss of use of her back and nothing more. Rather, the physicians indicate that an injury to plaintiff\u2019s spinal cord has resulted in weakness in all of her extremities, and numbness or loss of sensation throughout her body. The doctors further testify that she has suffered diminished mobility and has \u201cdifficulty with position sense and with recognition of things in her hands when objects are placed in her hands.\u201d All of this testimony is uncontradicted. Under such circumstances the Commission may not limit plaintiff to an award under G.S. 97-31(23). The impairments described above are compensable under other sections or subsections of the Workmen\u2019s Compensation Act and are not subsumed under the provisions of subsection (23) which provides compensation only \u201cfor loss of use of the back.\u201d If the Commission determines plaintiff has suffered these impairments, as the uncontradicted evidence tends to show, the award must take into account these and all other compensable injuries resulting from the accident. \u201c[T]he injured employee is entitled to an award which encompasses all injuries received in the accident.\u201d Giles v. Tri-State Erectors, 287 N.C. 219, 214 S.E. 2d 107 (1975).\nFor the reasons given, this case must be remanded to the Industrial Commission for further proceedings. However, because of the substantial likelihood that other questions will arise again during these further proceedings, we deem it appropriate to address certain matters raised by plaintiff\u2019s brief and by the opinion of the Court of Appeals.\nBoth the full Industrial Commission and the Court of Appeals overruled plaintiff\u2019s contention that she is entitled to benefits for total incapacity for work by referring to the testimony of Dr. Mahaley that \u201cthere are some gainful occupations that someone with [plaintiff\u2019s] degree of neurological problem could pursue,\u201d and to the absence of any testimony that she is totally disabled.\nWe first note that Dr. Mahaley\u2019s quoted statement is an oblique generality which sheds no light on plaintiff\u2019s capacity to earn wages. Uncontradicted evidence establishes that she is over fifty years of age, somewhat obese, has an eighth grade education, and at the time of her accident had been working as a laborer earning less than $2.00 per hour. The relevant inquiry under G.S. 97-29 is not whether all or some persons with plaintiff\u2019s degree of injury are capable of working and earning wages, but whether plaintiff herself has such capacity. In Anderson v. Motor Co., 233 N.C. 372, 64 S.E. 2d 265 (1951), Justice Ervin, writing for the Court, noted: \u201cWhile there seems to be no case on the specific point in this State, courts in other jurisdictions hold with virtual uniformity that when an employee afflicted with a pre-existing disease or infirmity suffers a personal injury by accident arising out of and in the course of his employment, and such injury materially accelerates or aggravates the pre-existing disease or infirmity and thus proximately contributes to the death or disability of the employee, the injury is compensable, even though it would not have caused death or disability to a normal person.\u201d Similarly, if other pre-existing conditions such as an employee\u2019s age, education and work experience are such that an injury causes him a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the incapacity which he or she suffers, and not for the degree of disability which would be suffered by someone with superior education or work experience or who is younger or in better health. See A. Larson, Workmen\u2019s Compensation \u00a7 57.51, at nn. 96-97 (1976), and cases collected therein. Dr. Mahaley\u2019s testimony sheds no light on plaintiff\u2019s capacity to pursue gainful employment. Consequently his testimony affords no basis for the Commission to conclude plaintiff has not suffered total incapacity for work.\nNor may plaintiff be denied benefits for total disability by reason of her failure thus far to present evidence that she is in fact totally disabled. In workmen\u2019s compensation cases a claimant generally bears the burden of proving the extent or degree of disability suffered. Hall v. Chevrolet, Inc., 263 N.C. 569, 139 S.E. 2d 857 (1965). Compare Larson, supra \u00a7 57.61, at nn. 24-34 (1976). In the present case, however, the record shows that plaintiff sought to present her own testimony on this subject, but refrained from doing so when Deputy Commissioner Dandelake stated that her testimony would pertain to an uncontested issue and was unnecessary. Under G.S. 97-84 a party to workmen\u2019s compensation proceedings is afforded the right to testify and present such relevant evidence as he may choose. \u201c[T]he determinative facts upon which the rights of the parties must be made to rest must be found . . . after all parties have been given full opportunity to be heard.\u201d Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E. 2d 777 (1953). When a claimant refrains from presenting evidence in reliance on an inaccurate statement by a deputy commissioner that a certain matter is uncontested, the right guaranteed by G.S. 97-84 has been abridged and the claimant\u2019s failure to present such evidence may not be used against him. Accordingly, before the Commission may determine that plaintiff is not entitled to compensation for permanent total disability, she must be afforded an opportunity to present evidence relevant to her capacity to work and earn wages.\nWe think it appropriate to emphasize again that the criterion for compensation in cases covered by G.S. 97-29 or -30 is the extent of the claimant\u2019s \u201cincapacity for work.\u201d Here, the physicians\u2019 estimates of plaintiff\u2019s disability do not refer to the diminution of plaintiff\u2019s wage earning capacity because of her injury, but refer only to the degree of loss of use of her nervous system (Dr. Mahaley) or the impairment of her ability to carry out \u201ctotal life functions\u201d (Dr. Greenhoot). A person may be wholly incapable of working and earning wages even though her ability to carry out normal life functions has not been wholly destroyed and even though she has not lost 100 percent use of her nervous system. See cases collected in 99 C.J.S., Workmen\u2019s Compensation, \u00a7 295, n. 18 (Cum. Supp. 1978).\nSo the ultimate question remains: To what extent is plaintiff now able to earn, in the same or any other employment, the wages she was receiving at the time of her injury? If she is unable to work and earn any wages, she is totally disabled. G.S. 97-2(9). In that event, unless all her injuries are included in the schedule set out in G.S. 97-31, she is entitled to an award for permanent total disability under G.S. 97-29. If all her injuries are included in the schedule set out in G.S. 97-31, she is entitled to compensation exclusively under G.S. 97-31. This is true from the language of the statute itself. See Watts v. Brewer, 243 N.C. 422, 90 S.E. 2d 764 (1956); Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E. 2d 570 (1942). Compare Larson, supra, \u00a7 58.20, n. 34 et seq.\nIf she is able to work and earn some wages, but less than she was receiving at the time of her injury, she is partially disabled. G.S. 97-2(9). In that event she is entitled to an award under G.S. 97-31 for such of her injuries as are listed in that section, and to an additional award under G.S. 97-30 for the impairment of wage earning capacity which is caused by any injuries not listed in the schedule in G.S. 97-31. See Morgan v. Norwood, 211 N.C. 600, 601-02, 191 S.E. 345, 346 (1937). See generally W. Schneider, Workmen\u2019s Compensation Text \u00a7 2318 (1957).\nBy her fifth assignment of error plaintiff contends the Commission erred in its calculation of her average weekly wage. The record shows that plaintiff and defendants entered into a stipulation that \u201cthe average weekly wage of the employee at the time of said injury, including overtime and all allowances, was $62.40.\u201d This stipulation was approved by the Commission and is binding absent a showing that \u201cthere has \u2022 been error due to fraud, misrepresentation, undue influence or mutual mistake ...\u201d G.S. 97-17; Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E. 2d 355 (1976). No such showing or allegation has been made.\nFor the reasons given the judgment of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for remand to the Industrial Commission for further proceedings in accordance with this opinion.\nReversed and remanded.", "type": "majority", "author": "HUSKINS, Justice." } ], "attorneys": [ "Henry T. Drake, attorney for plaintiff appellant.", "B. Irvin Boyle and Norman A. Smith of Boyle, Alexander and Hord, attorneys for defendant appellees." ], "corrections": "", "head_matter": "ELVA L. LITTLE v. ANSON COUNTY SCHOOLS FOOD SERVICE and TRAVELERS INSURANCE COMPANY\nNo. 8\n(Filed 29 August 1978)\n1. Master and Servant \u00a7\u00a7 67.1, 94.1\u2014 workmen\u2019s compensation \u2014 injury to spinal cord \u2014 compensation for partial loss of use of back improper\nWhere the uncontradicted evidence tended to show that plaintiff suffered an injury to her spinal cord which resulted in weakness in all of her extremities and numbness or loss of sensation throughout her body, and that she suffered diminished mobility and had \u201cdifficulty with position sense and with recognition of things in her hands when objects are placed in her hands,\u201d the Industrial Commission could not limit plaintiff to an award under G.S. 97-31(23) for partial loss of use of her back but instead should have taken into account all compensable injuries resulting from the accident.\n2. Master and Servant \u00a7 67.3\u2014 workmen\u2019s compensation \u2014 pre-existing conditions of age, education, work experience\nIf pre-existing conditions such as an employee\u2019s age, education and work experience are such that an injury causes him a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the incapacity which he or she suffers, and not for the degree of disability which would be suffered by someone with superior education or work experience or who is younger or in better health.\n3. Master and Servant \u00a7 93.2\u2014 evidence not presented \u2014 reliance on deputy commissioner\u2019s representation \u2014 right to present evidence abridged\nWhen a claimant refrains from presenting evidence in reliance on an inaccurate statement by a deputy commissioner of the Industrial Commission that a certain matter is uncontested, the right to testify and present evidence guaranteed by G.S. 97-84 has been abridged and the claimant\u2019s failure to present such evidence may not be used against him; therefore, before the Commission may determine that plaintiff is not entitled to compensation for permanent total disability, she must be afforded an opportunity to present evidence relevant to her capacity to work and earn wages.\n4. Master and Servant \u00a7 69\u2014 workmen\u2019s compensation \u2014extent of incapacity for work as criterion\nThe criterion for compensation in workmen\u2019s compensation cases covered by G.S. 97-29 or -30 is the extent of the claimant\u2019s \u201cincapacity for work.\" Physicians\u2019 estimates of plaintiff\u2019s disability which referred only to the degree of loss of use of her nervous system and to the impairment of her ability to carry out \u201ctotal life functions\u201d were insufficient to support the Commission\u2019s finding that plaintiff was entitled to compensation for permanent partial disability or loss of use of her back and not to benefits for total incapacity to work, since a person may be wholly incapable of working and earning wages even though her ability to carry out normal life functions has not been wholly destroyed and even though she has not lost 100 percent use of her nervous system.\n5. Master and Servant \u00a7 94\u2014 employee\u2019s average weekly wage \u2014stipulation \u2014 binding effect\nA stipulation between the parties in a workmen\u2019s compensation case as to the plaintiff\u2019s average weekly wage was approved by the Industrial Commission and was binding absent a showing of error due to fraud, misrepresentation, undue influence or mutual mistake, and no such showing or allegation was made by plaintiff. G.S. 97-17.\nON certiorari to review decision of the Court of Appeals affirming the award of the North Carolina Industrial Commission, 33 N.C. App. 742, 236 S.E. 2d 801 (1977).\nThe facts pertinent to decision in this workmen\u2019s compensation case are narrated below:\n1. On 20 November 1973 plaintiff was injured under compen-sable circumstances when she fell over a mop bucket and landed in a sitting position. The fall resulted in a significant injury to her spinal cord in the mid-cervical region.\n2. On 24 January 1974 Dr. Jerry Greenhoot performed an anterior cervical fusion and discectomy in an attempt to decompress the spinal cord. Plaintiff reached maximum improvement on 3 July 1974 and was discharged from Dr. Greenhoot\u2019s care. The operation did not repair the spinal cord damage and produced no significant improvement in plaintiff\u2019s condition. Dr. Greenhoot testified that nothing further can be done medically to alleviate plaintiff\u2019s spinal cord injury, which has resulted in incomplete use of her extremities and weakness of grip. He rated plaintiff\u2019s physical disability at 50 percent. He emphasized, however, that this estimate of disability \u201cis not related to work,\u201d but rather refers to the diminution of plaintiff\u2019s ability to carry out \u201ctotal life function.\u201d He further testified that in his opinion plaintiff was wholly incapable of resuming her former employment as a laborer.\n3. On 16 April 1974 the parties signed an agreement providing, in pertinent part, that plaintiff\u2019s injury occurred under compensable circumstances, that her average weekly wage including overtime and all allowances was $62.40, and that defendants would pay compensation at the rate of $41.60 per week \u201cfor necessary weeks.\u201d\n4. On 19 September 1974 plaintiff was examined by Dr. Stephen Mahaley, a neurosurgeon at Duke Hospital. This doctor found that she had a generalized weakness in both arms and both legs, loss of mobility, numbness to pin prick \u201cthroughout her body on right and left sides,\u201d and had difficulty with tactile recognition of objects placed in her hands. Dr. Mahaley testified that in his opinion plaintiff had suffered an injury to her spinal cord in the neck area; that she had a pre-existing arthritic condition in her neck which was activated by the trauma of her fall; that \u201cfurther medical treatment will not change her neurological condition\u201d; and that she has suffered a 40 percent disability to the neurological system. When asked concerning plaintiff\u2019s ability to work, Dr. Mahaley replied: \u201cI think there are some gainful occupations that someone with this degree of neurological problem could pursue.\u201d\nFollowing the evidentiary hearings, Deputy Commissioner Dandelake found, inter alia, that plaintiff\u2019s average weekly wage at the time of her injury was $58.31 and that she had suffered \u201can average permanent partial disability of 45\u00b0/o or loss of use of her back.\u201d Accordingly, he awarded compensation at the rate of $38.87 per week for 135 weeks commencing 8 August 1974 pursuant to G.S. 97-31(23).\nOn appeal the full Industrial Commission, by majority vote, affirmed the Deputy Commissioner\u2019s findings except for his calculation of plaintiff\u2019s average weekly wage, which was found to be $62.40' instead of $58.31. Plaintiff\u2019s weekly compensation was increased accordingly to $41.60. Plaintiff appealed to the Court of Appeals and that Court affirmed the Commission\u2019s decision in all respects. We allowed certiorari to review the decision of the Court of Appeals.\nHenry T. Drake, attorney for plaintiff appellant.\nB. Irvin Boyle and Norman A. Smith of Boyle, Alexander and Hord, attorneys for defendant appellees." }, "file_name": "0527-01", "first_page_order": 559, "last_page_order": 566 }