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Anderson v. Dana Corp.12/21/2004
2002) (quoting Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)). "'" he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony."'" Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 711, 599 S.E.2d 508, 515 (2004) (citations omitted).
Plaintiff here presented medical evidence and gave personal testimony as to his physical incapacity to work as a consequence of the work-related injury . The Industrial Commission found that plaintiff was released to work on 29 December 1998, and that no other competent medical evidence of a continuing disability was presented. The Commission noted in its findings the medical examinations of plaintiff conducted by Dr. DuPuy, Dr. Akande, and Dr. Rhyne. Further, the Commission found that none of the medical examinations had resulted in plaintiff's being taken out of work after Dr. DuPuy released plaintiff to return to work. Plaintiff's only proof of continuing disability was his own testimony, which the Commission found lacked credibility. The Commission's conclusion that plaintiff failed to establish he was incapable ofwork as a result of the compensable injury after 5 January 1999 is therefore affirmed.
II.
Plaintiff next contends the Industrial Commission erred as a matter of law in failing to award plaintiff temporary total disability from 5 January 1999 to 31 May 2000 and temporary partial disability benefits from 1 June 2000 until plaintiff's death. We disagree.
Defendant cites Brown v. S & N Communications, Inc., 124 N.C. App. 320, 477 S.E.2d 197 (1996) for the proposition that once a disability is proven, "'there is a presumption that it continues until the employee returns to work at wages equal to those he was receiving at the time his injury occurred.'" Brown, 124 N.C. App. at 329, 477 S.E.2d at 202 (citations omitted).
Here however, as discussed supra, the Commission concluded:
In the instant case no doctor took decedent out of work after his release to full-duty work without restrictions on December 29, 1998. Decedent failed to establish by the greater weight of the medical evidence that as a result of the compensable injury by accident he was incapable of work in any employment after January 5, 1999.
As the Commission found no incapacity for work resulting from the injury after 5 January 1999, and therefore no disability, no presumption was created and the Commission properly concluded that plaintiff was not eligible for continued partial or total benefits under the Workers' Compensation Act. See Brown, 124 N.C. App. at 329, 477 S.E.2d at 202 (holding that in order to receive disabilitycompensation under the Act, the injury must have impaired the worker's earning capacity).
For the reasons stated herein, the opinion and award of the Full Commission is affirmed.
Affirmed.
Judges WYNN and THORNBURG concur.
Report per Rule 30(e).
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