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Dishmond v. International Paper Co.3/16/1999
Appeal by plaintiff from Opinion and Award for the Full Commission entered 13 April 1998. Heard in the Court of Appeals 28 January 1999.
Plaintiff was employed by defendant, International Paper Company, as a forklift operator. His duties included transferring large rolls of paper in and around defendant's manufacturing facility. On 20 September 1993, a roll of paper weighing approximately 1700 pounds fell on top of the forklift, causing its beacon warning light fixture to break loose and strike plaintiff's head. Plaintiff suffered a compound depressed skull fracture, causing brain damage that resulted in a twenty-six percent (26%) loss of hearing to his right ear and a sixty percent (60%) loss of vision in his left eye.
Plaintiff filed a claim with the Industrial Commission maintaining that he was entitled to compensation for scheduled injuries under N.C. Gen. Stat. § 97-31 (1991) in addition to compensation for total permanent disability under N.C. Gen. Stat. § 97-29 (1991). After an unfavorable ruling before a Deputy Commissioner, plaintiff appealed to the Full Commission. The Full Commission affirmed the Deputy, finding plaintiff to be "permanently and totally disabled as a result of the injuries to his brain, hearing, and vision," and concluding that plaintiff was entitled to compensation under section 97-29, but ineligible for additional compensation under section 97-31. Plaintiff appeals. We affirm the findings and Conclusions of the Industrial Commission.
Plaintiff first claims that the Industrial Commission erred when it ruled as a matter of law that he was not entitled to compensation for both scheduled injuries under section 97-31 and total incapacity under section 97-29. We do not agree.
"Appellate review of an order and award of the Industrial Commission is limited to a determination of whether the findings of the Commission are supported by the evidence and whether the findings in turn support the legal Conclusions of the Commission. . . . This is so even though there is evidence which would support a finding to the contrary." Radica v. Carolina Mills, 113 N.C. App. 440, 445-46, 439 S.E.2d 185, 189 (1994) (quoting Simon v. Triangle Materials, Inc., 106 N.C. App. 39, 41, 415 S.E.2d 105, 106, disc. review denied, 332 N.C. 347, 421 S.E.2d 154 (1992)).
Sections 97-29 and 97-31 have been interpreted as offering alternative avenues of recovery to an employee whose scheduled injuries leave him or her totally incapacitated. See Hill v. Hanes Corp., 319 N.C. 167, 353 S.E.2d 392 (1987). Section 97-29 provides compensation for total disability, while section 97-31 furnishes a menu of specific harms and corresponding compensations. The general rule is that "stacking of benefits covering the same injury for the same time period is prohibited." Gupton v. Builders Transport, 320 N.C. 38, 43, 357 S.E.2d 674, 678 (1987) (citations omitted). However, as noted in Gupton, this statutory scheme exists to prevent double recovery, not to dictate an exclusive remedy. See id. Our Supreme Court has stated, "Even if all injuries are covered under the scheduled injury section an employee may nevertheless elect to claim under N.C.G.S. § 97-29 if this section is more favorable; but he may not recover under both sections." Hill at 176, 353 S.E.2d at 398 (citation omitted). Thus, a totally disabled plaintiff, whose injuries are also completely covered by section 97-31, is entitled to determine which statutory remedy offers the more generous benefits and proceed under that statute.
However, our Supreme Court has held that recovery under both sections is available under certain circumstances. In Hill, the employee suffered twenty percent (20%) disability to b
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