 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Saunders v. Edenton OB/GYN Center6/16/2000
continuing presumption of total disability. Based on this conclusion, the Commission awarded plaintiff temporary total disability compensation from 20 October 1993 through the present and continuing until such time as she returns to work. The Commission's conclusions, and the resulting award, ignore the terms of the Form 26 agreement between the parties and were based on the incorrect impression that plaintiff was entitled to an ongoing presumption of total disability. Because the award was reached through the erroneous application of law, we therefore reverse the Court of Appeals' opinion affirming the award and remand to the Court of Appeals for further remand to the Commission for determination in accord with this opinion.
In light of our conclusion that there was no continuing presumption of total disability, we do not reach the question of whether defendants rebutted the presumption. Likewise, the dissent from the Court of Appeals questions the sufficiency of the Commission's findings of fact addressing the reason plaintiff left her employment with Saunders & Sons, Inc., and whether that employment should have been sufficient to rebut the presumption of disability. As the opinion of the Court of Appeals is reversed, and on remand to the Commission plaintiff will have the burden of rebutting an ongoing presumption of partial disability in her claim for total disability, it is unnecessary for us to address the issues raised by the dissent. Additionally, with respect to defendants' contention that the Commission relied on medical records not properly in evidence, after careful consideration of the record, briefs and oral arguments of the parties, specifically including the findings and conclusions of the Commission, we conclude discretionary review of this issue was improvidently allowed.
In summary, the Court of Appeals erred in affirming the decision of the Commission finding an ongoing presumption of total disability in favor of plaintiff. The Form 26 agreement between the parties established an ongoing presumption of "temp. partial disability," and plaintiff has the burden of rebutting that presumption in moving to establish a claim for total disability. Likewise, in order to rebut plaintiff's claim of ongoing partial disability, in the event such issue arises, defendants have the burden of proving "`not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations.'" Saums, 346 N.C. at 763-64, 487 S.E.2d at 749 (quoting Kennedy v. Duke Univ. Medical Ctr., 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990)). The opinion of the Court of Appeals is reversed and this case is remanded to that court for further remand to the North Carolina Industrial Commission for disposition in accordance with this opinion.
REVERSED AND REMANDED IN PART; DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED IN PART.
|