Cratt v. Perdue Farms, Inc., 102 N.C. App. 336

102 N.C. App. 336 | N.C. Ct. App. | 1991

HEDRICK, Chief Judge.

Plaintiff assigns error to the refusal of the Commission to award him permanent total disability benefits pursuant to G.S. 97-29. Plaintiff argues that the evidence shows that he is permanently disabled from any and all kinds of employment because of his severe back and leg discomfort, a degenerative condition which is not expected to improve.

In Harmon v. Public Service of N.C., Inc., 81 N.C. App. 482, 344 S.E.2d 285, disc. review denied, 318 N.C. 415, 349 S.E.2d 595 (1986), quoting Fleming v. K-Mart Corp., 312 N.C. 538, 324 S.E.2d 214 (1985), this Court held that when an injury to the back causes referred pain to the extremities of the body and this pain impairs the use of the extremities, the award of workers’ compensation must take into account such impairment and also that a plaintiff suffering from “chronic back and leg pain” cannot be fully compensated under G.S. 97-31 and is entitled to compensation under G.S. 97-29.

In passing upon an appeal from an award of the Industrial Commission, the reviewing court is limited in its inquiry to: (1) whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether the conclusions of law are supported by the findings of fact. Barham v. Food World, 300 N.C. 329, 266 S.E.2d 676, reh’g denied, 300 N.C. 562, 270 S.E.2d 116 (1980).

The Industrial Commission found as a fact that plaintiff “ultimately reached maximum medical improvement and/or the end of the healing period” and that plaintiff was having “no significant back or leg discomfort.” Based on that determination, the Commission concluded as a matter of law that plaintiff was not entitled to recover for permanent total disability under G.S. 97-29, but was relegated to a recovery under G.S. 97-31 for permanent partial disability of the back.

In reviewing the record, we find no competent evidence to support the finding that “the plaintiff is suffering no significant back or leg discomfort.” On the contrary, our review finds evidence which shows that plaintiff is continuing to experience severe back and leg discomfort any time he attempts to become normally active, and that this condition is at least partially attributable to the injury plaintiff sustained. Whether the evidence in the record is sufficient to support a finding that plaintiff is totally and permanently disabled within the meaning of G.S. 97-29 is yet to be determined.

Therefore, the cause is remanded to the Industrial Commission to make findings from the evidence sufficiently definitive to determine the question of whether the plaintiff is entitled to benefits under G.S. 97-29.

Remanded.

Judges COZORT and LEWIS concur.