In Fleming v. K-Mart Corp., 312 N.C. 538, 324 S.E.2d 214 (1985), this Court expressed a willingness to depart from the rule stated in Perry.Summary of this case from Whitley v. Columbia Lumber Mfg. Co.
Filed 8 January 1985
1. Master and Servant 65.2 — workers' compensation — back injury — referred pain — amount of compensation When an injury to the back causes referred pain to the extremities of the body and this pain impairs the use of the extremities, an award of workers' compensation must take into account such impairment.
2. Master and Servant 65.2 — workers' compensation — back injury and pain in legs — permanent total disability The Industrial Commission's conclusion that plaintiff is entitled to an award of compensation for permanent total disability under G.S. 97-29, not just for loss of use of the back under G.S. 97-31 (23), is supported by the Commission's findings that, in addition to his initial back injury, plaintiff also suffers from arachnoiditis, resulting in extreme pain in plaintiffs legs which makes walking and other movement practically, if not functionally, impossible, and that plaintiff is incapable of earning any wages because of his back injury and arachnoiditis. G.S. 97-2 (9).
3. Master and Servant 69 — workers' compensation — total disability — combined effect of all injuries Even though no single injury of a claimant resulted in total and permanent disability, the claimant is entitled to receive compensation under G.S. 97-29 so long as the combined effect of all the injuries caused permanent and total disability as that term is defined in G.S. 97-2 (9).
4. Master and Servant 69 — workers' compensation — loss of use of legs — total and permanent disability Where the Industrial Commission's findings support a conclusion that plaintiff suffered total loss of use of both legs due to arachnoiditis, he is entitled under G.S. 97-31 (17) to compensation for total and permanent disability in accordance with the provisions of G.S. 97-29
ON discretionary review of the decision of the Court of Appeals, 67 N.C. App. 669, 313 S.E.2d 890 (1984), affirming the opinion and award of the Industrial Commission filed 7 September 1982, as amended 11 October 1982. Heard in the Supreme Court 10 October 1984.
Walker, Palmer Miller, by George J. Miller, for plaintiff.
Hedrick Eatman, Gardner, Feerick Kincheloe, by John F. Morris and Edward L. Eatman, Jr., for defendant.
Justice VAUGHN did not participate in the consideration or decision of this case.
Justice MEYER dissenting.
On 27 December 1978 plaintiff was injured while lifting boxes of paint in the course of his employment with defendant. After being treated initially by a family physician for back pain resulting from the accident, plaintiff was examined on 20 February 1979 by Grady E. Price, an orthopedic surgeon. A myelogram was performed on Mr. Fleming which revealed a large ruptured disk between his fourth and fifth lumbar vertebrae. On 26 February 1979 Dr. Price performed a laminectomy, removing the disk material which was causing plaintiff pain. Plaintiff was readmitted to the hospital in November 1979 for further back surgery; at this point an arthritic spur in the third space on his left side was removed. Dr. Price also removed some scar tissue wrapped around a nerve root in hopes of alleviating some of plaintiff's pain. These two operations did not relieve chronic pain plaintiff felt in his back and legs. However, because this pain apparently arose from the scar tissue formed from the operations and because additional surgery would create more scar tissue, Dr. Price advised Mr. Fleming that further operations would not be helpful. Since his second operation, Mr. Fleming has suffered chronic back and leg pain which prevents him from remaining in any one physical position for an extended period of time.
Plaintiff applied for workers' compensation benefits, and after a hearing a deputy commissioner of the Industrial Commission filed an opinion and award on 23 December 1981. This opinion and award found as facts that plaintiff had suffered an injury by accident arising out of and in the course of his employment by defendant and that he sustained a fifty percent permanent partial disability to his back as a result of the accident. The commissioner determined that because plaintiffs only injury was to his back, he was entitled to receive compensation only under N.C.G.S. 97-31 (23). Therefore the commissioner awarded plaintiff compensation of $132 per week for 150 weeks.
Plaintiff appealed this ruling to the Full Commission, which vacated and set aside the deputy commissioner's opinion and award on 7 September 1982. The Full Commission found as facts, inter alia, that as a result of the medical treatments he received for his back injury, plaintiff developed arachnoiditis, "the binding down of the spinal nerve roots"; that arachnoiditis is responsible for plaintiff's current disabling pain in his back and legs; that plaintiff is totally unable to pursue work of any kind and therefore is incapable of earning any wages; and that plaintiff is permanently and totally disabled as a result of the accident and the development of arachnoiditis. The Commission concluded as a matter of law that because of his injury and arachnoiditis plaintiff is incapable of earning the wages which he was receiving at the time of his injury, and therefore plaintiff is totally disabled within the meaning of N.C.G.S. 97-2 (9); that plaintiff is entitled to an award of compensation for permanent total disability under N.C.G.S. 97-29; and that plaintiff is entitled to all medical expenses incurred as a result of his injury and arachnoiditis. The Commission awarded plaintiff $88 per week (which was later amended to $132 per week) during the period of total permanent disability. The Commission also ordered defendant to pay medical expenses which the plaintiff incurred because of the injury and arachnoiditis.
Defendant appealed this order to the Court of Appeals, which affirmed. Defendant's petition to this Court for discretionary review was allowed 6 July 1984.
The sole issue before us is whether the Court of Appeals erred by affirming the Industrial Commission's opinion and award which found that plaintiff is permanently and totally disabled and therefore entitled to compensation under N.C.G.S. 97-29. In relevant part, N.C.G.S. 97-29 provides:
Except as hereinafter otherwise provided, where the incapacity for work resulting from the injury is total, the employer shall pay or cause to be paid, as hereinafter provided, to the injured employee during such total disability a weekly compensation equal to sixty-six and two-thirds percent (66 2/3%) of his average weekly wages, but not more than the amount established annually to be effective October 1 as provided herein, nor less than thirty dollars ($30.00) per week.
In cases of total and permanent disability, compensation, including reasonable and necessary nursing services, medicines, sick travel, medical, hospital, and other treatment or care of rehabilitative services shall be paid for by the employer during the lifetime of the injured employee.
The term "disability" as used in the Workers' Compensation Act is defined by N.C.G.S. 97-2 (9). This statute provides that the term means "incapacity because of the injury to earn wages which the employee was receiving at the time of injury in the same or any other employment." In Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982), we held that:
[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's incapacity to earn was caused by plaintiff's injury.
In the present case the Industrial Commission made the following findings of fact:
1. On December 27, 1978, plaintiff sustained an injury by accident arising out of and in the course of his employment as Manager of the Paint Department with defendant employer. At that time, he experienced some back and bilateral leg pain while lifting heavy boxes of paint. He was initially treated by a family practitioner in Huntersville, North Carolina, but as his symptoms of back and leg pain worsened, he sought medical assistance from a specialist.
2. Grady E. Price, an orthopedic surgeon, examined plaintiff on February 20, 1979. Dr. Price diagnosed a ruptured disc. Corrective surgery was recommended and performed at the Orthopedic hospital of Charlotte by Dr. Price on February 26, 1979.
3. A laminectomy was performed, and that portion of the disc believed to be putting pressure on the nerve was removed. Preoperative leg pain subsided only temporarily, so Dr. Price prescribed oral cortisone.
4. Plaintiff's condition did not adequately respond to nonsurgical treatment, and he was again readmitted to the hospital for surgery by Dr. Price on November 19, 1979.
5. During this surgery, the third space was operated on and an arthritic spur, which may or may not have been causing pressure on the nerve, was spotted. The scar tissue wrapped around the nerve root was removed.
6. Plaintiff was discharged from the hospital on November 27, 1979, and was examined by Dr. Price on a December 28, 1979 follow-up visit. Plaintiff was complaining of stiffness and aching in his back, and with leg pain.
7. Dr. Price communicated with plaintiff regularly in January, February, and March of 1980, during which time, plaintiff continued to experience pain in his back and leg.
8. A myelogram was performed in August 1980 revealing another defect at the third and fourth spaces. Dr. Price felt that additional surgical treatment would not be helpful.
9. Plaintiff continued to suffer from back and leg pain, and saw Dr. Price through February 1981. The pains were so severe, plaintiff could not be up for more than 30 minutes at a time. He had to lie down and rest frequently during the day. If he sat for long periods, his back hurt and he would have to get up to relieve the pain. When he did, his legs hurt and he had to sit back down. Thus, although on medication, plaintiff could not get comfortable at any one time during the day in both the back and legs.
10. Dr. Archie T. Coffee, Jr., a neurologist, first examined plaintiff on April 7, 1981. Plaintiff related symptoms of pain in his lumbar spine, low back area, and his left leg.
11. Dr. Coffee, like Dr. Price, concluded that as a result of the treatment for the occupational injury to his back, plaintiff developed arachnoiditis. The end result of arachnoiditis is the binding down of the spinal nerve roots causing impairment and dysfunction.
12. Archnoiditis [sic] is responsible for plaintiff's current disabling pain in his back and leg.
13. Plaintiff is totally unable to pursue work of any kind, therefore, is incapable of earning any wages.
14. Plaintiff has sustained a permanent total disability as a result of the aforesaid injury by accident and the subsequent development of arachnoiditis.
The Commission concluded as matters of law, among other things, that:
1. Plaintiff is incapable to earn the wages which he was receiving at the time of his injury in the same or any other employment because of the injury and subsequent arachnoiditis, and is, therefore, totally disabled. G.S. 97-2 (9).
2. Plaintiff is entitled to an award of compensation for permanent total disability under G.S. 97-29.
Review of an award by 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. Perry v. Furniture Co., 296 N.C. 88, 249 S.E.2d 397 (1978). Upon reviewing the record we have concluded that all of the Commission's findings of fact are supported by evidence brought before it.
Both Dr. Price, an orthopedic surgeon, and Dr. Archie Coffee, Jr., a neurosurgeon, doctors who had treated or examined plaintiff, testified that they were of the opinion that plaintiff is incapable of earning any wages because of his accidental injury and arachnoiditis. As the Court of Appeals correctly notes, the testimony of these two experts concerning plaintiff's arachnoiditis and pain amply supports the Industrial Commission's findings with respect to plaintiff's actual medical condition. Indeed defendant does not argue that plaintiff is not, in fact, incapable of earning any wages because of his accidental injury and the ensuing arachnoiditis.
Instead, defendant takes issue with the Commission's determination that plaintiff suffered permanent total disability within the meaning of the Workers' Compensation Act. Both Dr. Price and Dr. Coffee rated plaintiff as having a permanent partial disability of fifty percent of the spine, even when plaintiff's leg pains were taken into account. Defendant argues that it is thus evident that plaintiff suffered only a partial loss of use of the back, and thus under our decisions in Little v. Food Service, 295 N.C. 527, 246 S.E.2d 743 (1978), and Perry v. Furniture Co., 296 N.C. 88, 249 S.E.2d 397 (1978), plaintiff is entitled to receive compensation only under the schedule set forth in N.C.G.S. 97-31 (23). We disagree.
In Little, plaintiff hurt her back in a work-related accident. The Commission only awarded her compensation for permanent partial disability under N.C.G.S. 97-31 (23) even though the injury to plaintiff's spinal cord also 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 "difficulty with position sense and with recognition of things in her hands when objects are placed in her hands." All of this testimony is uncontradicted.
The impairments described above are compensable under other sections or subsections of the Workmen's Compensation Act and are not subsumed under the provisions of subsection (23) which provides compensation only "for loss of use of the back." 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. "[T]he injured employee is entitled to an award which encompasses all injuries received in the accident." Giles v. Tri-State Erectors, 287 N.C. 219, 214 S.E.2d 107 (1975).
Id., 246 S.E.2d at 746. We also observed:
If [plaintiff] 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, 58.20, n. 34 et seq.
If 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's Compensation Text 2318 (1957).
Id. at 533, 246 S.E.2d at 747.
In Little there was no evidence that plaintiff was totally disabled because of her injuries. The cause was remanded to determine her capacity to work and earn wages. The evidence before the Commission was not sufficient to support a finding that the referred injuries caused by Little's back condition resulted in loss of use of additional parts of her body that would cause total physical disability. Her additional impairment was limited to weakness in her extremities and loss of sensation throughout her body. The evidence before the Commission was not sufficient to support a finding of total disability, and the Court remanded the case for the additional purpose of making findings under N.C.G.S. 97-30 to determine whether plaintiff was entitled to an additional award under that section.
Here, plaintiff is incapable of earning any wages and is therefore totally disabled as the result of his back injury and the resulting arachnoiditis.
In Perry, the plaintiff injured his back in a work-related accident and was awarded workers' compensation under N.C.G.S. 9731 (23). However, similarly to the Little case, the Commission failed to make findings as to whether plaintiff suffered any permanent loss of use of either or both legs when there was competent evidence before the Commission that would have supported such findings. Because "the injured employee is entitled to an award which encompasses all injuries received in the accident," Giles v. Tri-State Erectors, 287 N.C. 219, 225, 214 S.E.2d 107, 111 (1975), this Court remanded the Perry case for findings with respect to any loss of use of plaintiff's legs.
[1, 2] The present appeal is thus factually different from both Little and Perry and these cases do not compel a reversal of the decision of the Court of Appeals. In addition to his initial back injury, plaintiff also suffered from arachnoiditis, resulting in extreme disabling pain in plaintiff's legs. This pain, although emanating from plaintiff's spinal cord, is not experienced in the back but rather in the legs, making walking and other movement practically, if not functionally, impossible. We hold that when, as here, an injury to the back causes referred pain to the extremities of the body and this pain impairs the use of the extremities, then the award of workers' compensation must take into account such impairment. See Giles v. Tri-State Erectors, 287 N.C. 219, 214 S.E.2d 107. In the present case, unlike the Perry and Little cases, the Industrial Commission issued an opinion and award appropriately taking into account injuries both to plaintiff's back and to his legs. The Commission's finding that plaintiff was totally and permanently disabled within the meaning of N.C.G.S. 97-2 (9) is clearly supported by its findings of fact and is thus binding upon this Court.
If an injured employee is permanently and totally disabled as the term is defined by N.C.G.S. 97-2 (9), then he or she is entitled to receive compensation under N.C.G.S. 97-29. See West v. Bladenboro Cotton Mills, 62 N.C. App. 267, 302 S.E.2d 645 (1983); Cook v. Bladenboro Cotton Mills, 61 N.C. App. 562, 300 S.E.2d 852 (1983). See generally Note, North Carolina General Statutes Section 97-31: Must it Provide Exclusive Compensation for Workers who Suffer Scheduled Injuries?, 62 N.C.L. Rev. 1462 (1984). This is true even though no single injury of claimant resulted in total and permanent disability, so long as the combined effect of all of the injuries caused permanent and total disability.
Although it is clear that because plaintiff is totally unable to earn any wages, he is disabled within the meaning of N.C.G.S. 97-2 (9) and thus entitled to benefits under N.C.G.S. 97-29 directly, we note that if the Commission had analyzed plaintiff's case by turning first to the schedule of injuries in N.C.G.S. 97-31, it should have come to the same conclusion. N.C.G.S. 97-31 (19) states that "[t]otal loss of use of a member . . . shall be considered as equivalent to the loss of such member . . . ." N.C.G.S. 97-31 (17) provides that "[t]he loss of . . . both legs . . . shall constitute total and permanent disability, to be compensated according to the provisions of G.S. 97-29." The Commission's findings support a conclusion that plaintiff suffered total loss of use of both of his legs due to arachnoiditis. Therefore, under N.C.G.S. 97-31 (17) plaintiff would be entitled to receive benefits under N.C.G.S. 97-29.
Justice VAUGHN did not participate in the consideration or decision of this case.