Bowden v. The Boling Co.

429 S.E.2d 394, 110 N.C. App. 226, 1993 N.C. App. LEXIS 446
CourtCourt of Appeals of North Carolina
DecidedMay 18, 1993
DocketNo. 9210IC310
StatusPublished
Cited by8 cases

This text of 429 S.E.2d 394 (Bowden v. The Boling Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowden v. The Boling Co., 429 S.E.2d 394, 110 N.C. App. 226, 1993 N.C. App. LEXIS 446 (N.C. Ct. App. 1993).

Opinion

WYNN, Judge.

On 8 October 1987, plaintiff, an employee of defendant, The Boling Company, was injured when his left arm got caught between [228]*228the plates of a rocker-bender machine. Defendants paid the plaintiff benefits for temporary total disability. On 18 May 1988, defendants filed an application to stop payment of benefits on the grounds that plaintiff had refused suitable employment offered to him by The Boling Company. A hearing was held before Deputy Commissioner William Haigh on 12 July 1989. The Deputy Commissioner filed an opinion and award on 11 September 1990 which ruled that plaintiff was entitled to a continuation of temporary total disability benefits and, further, that the defendants were obligated to compensate plaintiff for any future surgeries performed by Dr. Serafín. From the Full Commission’s adoption and affirmation of the award and opinion, defendants appeal. We affirm.

The facts pertinent to this appeal are as follows: Plaintiff was 32 years old at the time of his injury. Plaintiff was employed as a machine operator for The Boling Company for approximately eleven years. During that time, he was primarily responsible for operating a rocker-bender machine used to steam and bend pieces of wood for the manufacture of furniture. Plaintiff’s injury occurred when the machine collapsed, trapping his left arm between the platens for approximately forty-five minutes. The heat and weight of the platens caused extensive third degree burns, as well as severe muscle and nerve damage to the left arm from above his elbow to the base of his fingertips. Plaintiff underwent treatment at the Burn Unit at North Carolina Memorial Hospital by Dr. H.D. Peterson, receiving multiple debridements and skin grafts of his left arm, wrist and hand.

On 21 March 1988, Dr. Peterson released the plaintiff to return to work for a trial period to a job suitable and safe for a one-armed person. Dr. Peterson also opined that the plaintiff would reach maximum medical improvement in three to six months. Plant supervisors and the plant nurse at The Boling Company determined that three positions were open, suitable and safe for plaintiff to return to work. They prepared written job descriptions of the positions which included: planer operator, double edge trim saw operator and dove-tail foot machine operator. All three positions involved feeding small pieces of wood into different machines for 90% of an eight hour shift. Plaintiff, having worked as a planer operator and double edge trim saw operator during his eleven years at the plant, refused the positions contending that the operation of the machines posed a significant threat to the safety of his [229]*229right arm. Plaintiff testified, along with two former employees of The Boling Company, that operation of the machines could not be performed safely by a worker with only one functional arm.

The Boling Company’s plant superintendent testified that he had operated all of the machines and had used both arms to do so. The defendants’ rehabilitation nurse .testified that based upon her observation of the three machines in operation, 4t was her opinion that the machines could be' operated by a person with only one functional arm. Dr. Peterson reviewed the descriptions of the jobs offered to plaintiff and concluded that the jobs were not safe because the plaintiff believed them to be dangerous.

On 11 August 1989, Dr. Peterson rated plaintiff as having a permanent partial impairment equivalent to an above-the-elbow amputation of the left arm — or a 100°/o disability of the arm. Upon the recommendation of Dr. Peterson, plaintiff was examined by Dr. Donald Serafín at the Duke University Medical Center for a second opinion regarding continued treatment. Dr. Serafín recommended that plaintiff receive several additional surgical procedures including transplants of muscle and nerve tissue to the left arm, as well as tendon and skin grafts.

In the Opinion and Award of Deputy Commissioner Haigh, which was affirmed and adopted by the Full Commission, the following findings of fact were made:

7. The three jobs offered by the employer to the plaintiff were not suitable for his capacity, and all of the offered jobs involved the risk of injury to the plaintiff’s right upper extremity. The plaintiff’s apprehension or fear of performing the jobs tendered by the employer was both reasonable, logical and rational, in that what would be safe for a man with two functional arms would not necessarily be safe for a man with only one functional arm. The plaintiff’s response was not a phobic-type response.
9. Dr. Serafín recommended that additional surgical procedures be performed to prevent infection and increase the function of the plaintiff’s left arm. If successful, the surgeries offered by Dr. Serafín would tend to effect a cure by reason of restoration of muscle function in the plaintiff’s left forearm, as well as increasing functional ability of the plaintiff’s left [230]*230wrist and grip, making the grip more precise and achieving extension of the thumb and fingers.
10. The plaintiff has been examined by two psychologists, and each determined that the plaintiff’s intellectual ability and functional I.Q. place him in the mild retardation range. The plaintiff’s intellectual ability make him a good candidate for vocational rehabilitation and employment once he reaches the end gf the healing period.
12. The plaintiff has not yet reached the end of the healing period .... Further Dr. Serafín recommends additional surgical procedures that could tend to effect a cure or give relief.
13. Due to the work related injury and his residual physical limitations, as well as his age, education, prior work experience and functional intellectual ability, the plaintiff has been unable to earn any wages since the accident on October 8, 1987.

From these and other findings the Commission concluded:

1. Based upon the admittedly compensable injury and the residual impairment of the plaintiff’s left arm, coupled with the plaintiff’s age, education, prior work experience and functional intellectual ability, the plaintiff has been unable to earn wages in any employment since the accident on October 8, 1987 and has been totally disabled since that date.
2. The plaintiff is entitled to compensation at a rate of $167.97 per week since October 8, 1987, and continuing for so long as he remains totally disabled, and so long as he complies with the terms and provisions of the Commission’s Order (N.C.G.S. § 97-29).
3. The defendants are responsible for all medical expenses related to the plaintiff’s injury on October 8, 1987, and all future medical expenses, . . . which would tend to effect a cure or give relief. (N.C.G.S. § 97-25).

I.

Defendants first contend that the findings of fact made by the Deputy Commissioner and adopted by the Full Commission were not supported by competent evidence and do not justify the legal conclusion that plaintiff has been totally disabled and unable to earn wages since the date of his injury.

[231]*231To recover under the Workers’ Compensation Act, the plaintiff bears the burden of proving the existence and extent of a disability. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682

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Bluebook (online)
429 S.E.2d 394, 110 N.C. App. 226, 1993 N.C. App. LEXIS 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowden-v-the-boling-co-ncctapp-1993.