{ "id": 139539, "name": "In re: ALBERT DOUGLAS STONE, Employee v. G & G BUILDERS, Employer, EMPLOYERS MUTUAL INSURANCE CO., Carrier", "name_abbreviation": "Stone v. G & G Builders", "decision_date": "1997-05-09", "docket_number": "No. 161PA96", "first_page": "154", "last_page": "158", "citations": [ { "type": "official", "cite": "346 N.C. 154" } ], "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": "468 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": -1 }, { "cite": "121 N.C. App. 671", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919638 ], "year": 1996, "opinion_index": -1, "case_paths": [ "/nc-app/121/0671-01" ] }, { "cite": "181 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "279 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565922 ], "year": 1971, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0132-01" ] }, { "cite": "342 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704100 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0426-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "345 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "379" } ], "opinion_index": 0 }, { "cite": "317 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779801 ], "year": 1986, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0179-01" ] }, { "cite": "225 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "580" } ], "opinion_index": 0 }, { "cite": "290 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560920 ], "year": 1976, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0276-01" ] } ], "analysis": { "cardinality": 446, "char_count": 9488, "ocr_confidence": 0.728, "pagerank": { "raw": 2.694429014289489e-07, "percentile": 0.8278837878192898 }, "sha256": "6b405b3b9d9dee79dcd9c0281788f4668a0811b3ce910b8c1e1c9af0e5b84f4a", "simhash": "1:e105630043e7c344", "word_count": 1444 }, "last_updated": "2023-07-14T19:49:00.247328+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re: ALBERT DOUGLAS STONE, Employee v. G & G BUILDERS, Employer, EMPLOYERS MUTUAL INSURANCE CO., Carrier" ], "opinions": [ { "text": "PARKER, Justice.\nPlaintiff-employee, Albert Douglas Stone, suffered a compensable back injury on 5 March 1992. On 14 March 1994 Deputy Commissioner Gregory M. Willis filed an opinion and award denying plaintiffs claims for temporary total and permanent partial disability. The Industrial Commission affirmed the deputy commissioner\u2019s opinion and award. Plaintiff appealed to the Court of Appeals, which, in a unanimous opinion, reversed the Commission. On 30 July 1996 this Court allowed defendants\u2019 petition for discretionary review.\nOn 5 March 1992 plaintiff suffered a compensable back injury which prohibited plaintiff from working immediately after the accident. On 8 April 1992 plaintiff and G & G Builders and Employers Mutual Insurance Company (defendants) entered an Industrial Commission Form 21 \u201cAgreement for Compensation for Disability\u201d (Agreement), which was approved by the Commission on 24 April 1992. Pursuant to the Agreement defendants agreed to pay to plaintiff the sum of $210.01 per week for an \u201cundetermined\u201d number of weeks.\nOn 12 October 1992 plaintiff was seen by Dr. Lee A. Whitehurst, an orthopaedic surgeon and spine specialist, for an independent medical examination. Dr. Whitehurst noted in his medical records that plaintiff\u2019s hands were \u201cwell textured\u201d and grease stained, \u201cindicating some labor.\u201d Dr. Whitehurst opined in his medical records that plaintiff did \u201cnot have any objective findings on which to base a permanent partial disability rating\u201d and further opined that plaintiff could return to regular employment with the \u201croutine weight lifting guidelines\u201d that he have assistance when lifting more than 50 to 70 pounds. On 29 October 1992 defendants stopped payment of temporary total disability compensation. Defendants\u2019 Industrial Commission Form 24 \u201cApplication of Employer or Insurance Carrier to Stop Payment of Compensation\u201d was approved on 13 November 1992.\nPlaintiff requested a hearing to contest defendants\u2019 termination of plaintiff\u2019s disability payments, and a hearing was held on 13 July 1993. Defendants introduced evidence that plaintiff was able to perform various physical activities including painting overhead with a roller, lifting and carrying plywood, trimming overhead branches, and throwing horseshoes. In addition, defendants introduced medical evidence that as of 12 October 1992, plaintiff retained no permanent partial impairment to his back and that plaintiff could return to regular employment with certain restrictions. Furthermore, Dr. Whitehurst testified that plaintiff\u2019s responses during the medical examination were \u201cnonphysiologic\u201d and \u201catypical\u201d for the expected pain response.\nAfter the hearing the deputy commissioner made the following findings:\n8. Based on the examination and opinions of Dr. Whitehurst, the undersigned finds that plaintiff\u2019s testimony was not credible.\n9. From 29 October 1992 and continuing plaintiff has been capable of returning to work at his regular job with [G & G Builders], and any inability of plaintiff to be gainfully employed was not caused by the injury to his back of 5 March 1992. Since 29 October 1992 plaintiff has not made a reasonable effort under the circumstances to obtain gainful employment.\n10. As a result of the accident on 5 March 1992, plaintiff retains no permanent partial impairment to the use of his back.\nBased upon these findings the Commissioner concluded that plaintiff is not entitled to any temporary total disability compensation after 20 October 1992 and that plaintiff is not entitled to any permanent partial disability compensation.\nThe opinion and award was reviewed by the full commission on 11 July 1994. The full commission reached \u201cthe same facts and conclusions as those reached by the Deputy Commissioner.\u201d In addition, the full commission found the following:\n8. Based on the examination and opinions of Dr. Whitehurst, the undersigned find that plaintiff\u2019s testimony was not credible or convincing as to his inability to engage in the same or any other employment at the same wages.\nIn workers\u2019 compensation c\u00e1ses the Industrial Commission is the fact-finding body. Watkins v. City of Wilmington, 290 N.C. 276, 280, 225 S.E.2d 577, 580 (1976). On appeal from an order of the Industrial Commission, \u201c [t]he reviewing court\u2019s inquiry is limited to two issues: whether the Commission\u2019s findings of fact are supported by competent evidence and whether the Commission\u2019s conclusions of law are justified by its findings of fact.\u201d Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 379 (1986). In the instant case we conclude that the Commission\u2019s findings of fact are supported by competent evidence and that the conclusions of law are justified by these findings.\nIn order to qualify for compensation under the Workers\u2019 Compensation Act, a claimant must prove both the existence and the extent of disability. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982). In the context of a claim for workers\u2019 compensation, disability refers to the impairment of the injured employee\u2019s earning capacity. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986). \u201cIf an award is made by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work . . . .\u201d Watkins v. Central Motor Lines, 279 N.C. 132, 137, 181 S.E.2d 588, 592 (1971). However, as stated in Rule 404(1) of the Workers\u2019 Compensation Rules of the North Carolina Industrial Commission, this presumption of continued disability is rebuttable. In the instant case the parties entered into a Form 21 Agreement which was approved by the Commission on 24 April 1992. On 13 November 1992 defendants\u2019 Form 24 application to stop payment was approved by the Commission. Any presumptions existing in favor of the employee were rebutted by defendants in this case through medical and other evidence.\nTeresa Jean Atkins, an investigator with DATA Adjusters, Inc., testified that she videotaped plaintiff performing various physical activities in September of 1992. Defendants also introduced medical evidence that plaintiff retained no permanent partial impairment to his back as of 12 October 1992 and that plaintiff could return to regular employment with certain restrictions. In addition, Dr. Whitehurst testified that plaintiff\u2019s responses during the medical examination gave him cause to question plaintiff\u2019s credibility regarding his statements of pain. Defendants\u2019 evidence led the Commission to find that \u201cplaintiff\u2019s testimony was not credible or convincing as to his inability to engage in the same or any other employment at the same wages.\u201d This finding is supported by competent evidence in the record.\nThe Commission also found that \u201c[a]s a result of the accident on 5 March 1992, plaintiff retains no permanent partial impairment to the use of his back.\u201d Dr. Whitehurst stated in his deposition testimony that as a result of his examination he determined that plaintiff \u201cdid not have any objective findings on which to base a permanent partial disability rating.\u201d Thus, this finding is supported by competent evidence in the record.\nFinally, the Commission found that \u201cany inability of plaintiff to be gainfully employed was not caused by the injury to his back of 5 March 1992. Since 29 October 1992 plaintiff has not made a reasonable effort under the circumstances to obtain gainful employment.\u201d This finding is similarly supported by the testimony of Dr. Whitehurst and other competent evidence in the record.\nThe above findings of fact support the Commission\u2019s conclusions that plaintiff is not entitled to any temporary total disability compensation after 20 October 1992 and that plaintiff is not entitled to any permanent partial disability compensation.\nThe decision of the Court of Appeals is reversed, and this case is remanded to that court for further remand to the Industrial Commission for reinstatement of its opinion and award.\nREVERSED.", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "Brenton D. Adams for plaintiff-appellee.", "Teague, Campbell, Dennis & Gorham, L.L.P., by Linda Stephens and James E.R. Ratledge, for defendant-appellants." ], "corrections": "", "head_matter": "In re: ALBERT DOUGLAS STONE, Employee v. G & G BUILDERS, Employer, EMPLOYERS MUTUAL INSURANCE CO., Carrier\nNo. 161PA96\n(Filed 9 May 1997)\nWorkers\u2019 Compensation \u00a7 259 (NCI4th)\u2014 temporary total disability \u2014 permanent partial disability \u2014 plaintiff not entitled \u2014 supporting evidence\nThe Industrial Commission\u2019s determination that plaintiff is not entitled to temporary total disability compensation for a back injury after a certain date and that plaintiff is not entitled to permanent partial disability compensation was supported by the evidence where an investigator testified that she videotaped plaintiff performing various physical activities, and an orthopedic surgeon who examined plaintiff opined that plaintiff could return to regular employment with certain restrictions, testified that plaintiff\u2019s responses during the examination caused him to question plaintiff\u2019s credibility regarding his statements of pain, and stated that plaintiff did not have any objective findings on which to base a permanent partial disability rating.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 381, 382.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 121 N.C. App. 671, 468 S.E.2d 510 (1996), reversing an opinion and award of the Industrial Commission entered 19 December 1994. Heard in the Supreme Court 14 November 1996.\nBrenton D. Adams for plaintiff-appellee.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Linda Stephens and James E.R. Ratledge, for defendant-appellants." }, "file_name": "0154-01", "first_page_order": 192, "last_page_order": 196 }