Baldwin v. N. C. Memorial Hospital

32 N.C. App. 779 | N.C. Ct. App. | 1977

VAUGHN, Judge.

The award for plaintiff’s fifty percent permanent disability of the back was made pursuant to G.S. 97-31 which, in pertinent part, is as follows:

“In 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, except that in cases where there is seventy-five per centum (75%) or more loss of use of the back, in which event the injured employee shall be deemed to have suffered ‘total industrial disability’ and compensated as for total loss of use of the back.” (Emphasis added.)

The essence of plaintiff’s argument on appeal is as follows: There was evidence tending to show that plaintiff is 59 years old, did not finish high school, is overweight and is untrained for any other employment. Plaintiff argues that when these conditions were coupled with the back disability, it made him unemployable and, therefore, he should be considered totally disabled and compensated under the provisions of G.S. 97-29.

The argument runs contrary to the express terms of the statute. Plaintiff’s back disability makes his right to an award subject to G.S. 97-31. An award under G.S. 97-31 is “in lieu of all other compensation.” Plaintiff, in his brief, does not attempt to distinguish his case from the cases where this Court has rejected the very argument he now advances. Indeed, they are not mentioned. In Loflin v. Loflin, 13 N.C. App. 574, 186 S.E. 2d 660, cert. den., 281 N.C. 154, 187 S.E. 2d 585, at p. 578, this Court said:

“. . . The General Assembly, when it enacted G.S. 97-31 and, in 1955, made it applicable to the partial loss of use of the back, provided that compensation payable thereunder was ‘in lieu of all other compensation.’ ‘The language Of G.S. 97-31 is clear, and its provisions are mandatory.’ Watts v. Brewer, 243 N.C. 422, 90 S.E. 2d 764 (1956). The fact that an injury is one of those enumerated in the schedule of payments set forth under G.S. 97-31 precludes the Commission from awarding compensation under any other provision of the Act.”

Similar language and a like result may be found in Dudley v. Motor Inn, 13 N.C. App. 474, 186 S.E. 2d 188. The award of the Commission is affirmed.

Affirmed.

Judges Morris and Martin concur.