Whitley v. Columbia Lumber Mfg. Co.

Court of Appeals of North Carolina

Whitley v. Columbia Lumber Mfg. Co.

336 S.E.2d 642, 78 N.C. App. 217, 1985 N.C. App. LEXIS 4250

CourtCourt of Appeals of North Carolina

DecidedDecember 3, 1985

Docket8510IC575

StatusPublished

Cited by2 cases

This text of 336 S.E.2d 642 (Whitley v. Columbia Lumber Mfg. 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.

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Whitley v. Columbia Lumber Mfg. Co., 336 S.E.2d 642, 78 N.C. App. 217, 1985 N.C. App. LEXIS 4250 (N.C. Ct. App. 1985).

Pincite

Opinion

HEDRICK, Chief Judge.

The sole question on this appeal is whether a plaintiff who is totally and permanently disabled due to a 30% permanent partial disability of the left hand and a 75% permanent partial disability of the right hand is entitled to permanent total disability compensation under G.S. 97-29 or to permanent partial disability compensation under G.S. 97-31(12).

The plaintiff cites Fleming v. K-Mart Corp., 312 N.C. 538, 324 S.E. 2d 214 (1985) and West v. Bladenboro Cotton Mills, 62 N.C. App. 267, 302 S.E. 2d 645 (1983) in support of his contention that he is entitled to permanent total disability compensation under G.S. 97-29. West is a chronic obstructive lung disease case and is clearly distinguishable from the case at hand. Fleming is contrary to appellee’s contention:

If [plaintiff] is unable to work and earn any wages, she is totally disabled. G.S. 97-2(9). In that event, unless all her injuries are included in the schedule set out in G.S. 97-31, she is entitled to an award for permanent total disability under G.S. 97-29. If all her injuries are included in the schedule set out in G.S. 97-31, she is entitled to compensation exclusively under G.S. 97-31. This is true from the language of the statute itself.

Fleming v. K-Mart Corp., 312 N.C. 538, 545, 324 S.E. 2d 214, 218 (1985) (citations omitted).

All of plaintiffs injuries are scheduled in G.S. 97-31(12). When all of plaintiffs injuries are included in the schedule set out in G.S. 97-31, the injured employee is entitled to compensation exclusively under G.S. 97-31 regardless of his ability or inability to work. Perry v. Furniture Co., 296 N.C. 88, 249 S.E. 2d 397 (1978).

We are bound by the decisions of our Supreme Court to hold that the Industrial Commission erred in awarding compensation under G.S. 97-29 rather than G.S. 97-31. Therefore, the opinion and award of the Industrial Commission is reversed.

Reversed and remanded.

Judges Eagles and Martin concur.

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