Gaddy v. Kern

195 S.E.2d 141, 17 N.C. App. 680, 1973 N.C. App. LEXIS 1440

• Court: Court of Appeals of North Carolina
• Decided: March 28, 1973
• Docket: No. 7314IC18
• Status: Published

Opinion

CAMPBELL, Judge.

Plaintiff has argued that the Industrial Commission erred in not considering his evidence concerning severe headaches which he began to experience some three months after the injury occurred. It is his contention that the headaches are evidence of a general disability for which he is entitled to compensation under G.S. 97-30, and that the headache evidence necessitates a finding of a greater disability than that of 20% in his left hand.

Where the claimant has suffered injury as a result of accident arising out of and in the course of his employment of a specific nature included in G.S. 97-31, compensation provided by 97-31 for such specific injury is granted in lieu of all other compensation, except that he may also be entitled to compensation under G.S. 97-29 for total temporary disability during the course of the healing of that injury. Watkins v. Motor Lines, 279 N.C. 132, 181 S.E. 2d 588 (1971); Rice v. Panel Co., 199 N.C. 154, 154 S.E. 69 (1930).

Here the plaintiff received compensation during the healing period of the hand injury under G.S. 97-29, and after the healing period from the point of maximum recovery, for partial loss of use of his hand under G.S. 97-31(12).

But plaintiff also contends that the headaches entitled him to compensation under G.S. 97-30, which authorizes compensation for partial incapacity for work resulting from injury, not otherwise covered by G.S. 97-31.

In order to secure an award under G.S. 97-30, the claimant has the burden of proving (1) that the injury resulted from accident arising out of and in the course of his employment; (2) that there resulted from that injury a loss of earning capacity (disability) ; and (3) that he must prove the extent of that disability. Hall v. Chevrolet Co., 263 N.C. 569, 139 S.E. 2d 857 (1965); Henry v. Leather Co., 231 N.C. 477, 57 S.E. 2d 760 (1950). Without such proof there is no authority upon which to make an award even though permanent physical injury may have been suffered. Branham v. Panel Co., 223 N.C. 233, 25 S.E. 2d 865 (1943).

In the instant case there is no evidence that plaintiff’s headaches resulted from the accidental injury to his left arm, except a statement by the plaintiff himself that prior to his injury he had never had habitual headaches. The Industrial Commission is the sole judge of the credibilty of the evidence. It may accept or reject the testimony of a witness, either in whole or in part. It is not required to accept even the uncontradicted testimony of a witness. Morgan v. Furniture Industries, Inc., 2 N.C. App. 126, 162 S.E. 2d 619 (1968).

Since there was no evidence that the plaintiff’s headaches did result from the injury, and since plaintiff did not take exception to the Commission’s finding of fact that the headaches were unrelated to the injury, there is no error in the Commission’s award.

No error.

Judges Hedrick and Graham concur.