Fleming v. K-Mart Corp.

324 S.E.2d 214, 312 N.C. 538, 1985 N.C. LEXIS 1486
CourtSupreme Court of North Carolina
DecidedJanuary 8, 1985
Docket241PA84
StatusPublished
Cited by29 cases

This text of 324 S.E.2d 214 (Fleming v. K-Mart Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fleming v. K-Mart Corp., 324 S.E.2d 214, 312 N.C. 538, 1985 N.C. LEXIS 1486 (N.C. 1985).

Opinions

MARTIN, Justice.

The sole issue before us is whether the Court of Appeals erred by affirming the Industrial Commission’s opinion and award [541]*541which 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%%) 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 plaintiffs injury.

See also, e.g., Lucas v. Burlington Industries, 57 N.C. App. 366, 291 S.E. 2d 360, cert. granted, 306 N.C. 385 (1982), remanded by order (9 November 1982).

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 oüt o£ and in the course of his employment [542]*542as 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. Plaintiffs 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 [543]*543day. 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 plaintiffs 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.

[544]*544Both 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 plaintiffs arachnoiditis and pain amply supports the Industrial Commission’s findings with respect to plaintiffs 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.

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Cite This Page — Counsel Stack

Bluebook (online)
324 S.E.2d 214, 312 N.C. 538, 1985 N.C. LEXIS 1486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleming-v-k-mart-corp-nc-1985.