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Dishmond v. International Paper Co.3/16/1999
oth legs as a result of a fall. After reaching the point of maximum medical improvement for this scheduled injury, and within the time permitted to show a change of condition, see N.C. Gen. Stat. § 97-47 (1991), the employee was diagnosed with depression stemming from the original injury. Under these facts, our Supreme Court reasoned that the employee's psychological condition was directly related to, yet distinct from, his physical injury and held that there were "no double payments for the same injury." Hill at 177, 353 S.E.2d at 398. Because the employee's scheduled injury subsequently gave rise to a separate totally incapacitating psychiatric disorder within the statutory time limits, the employee was entitled to recover under both section 97-29 and section 97-31.
Despite plaintiff's argument to the contrary, we find Hill is not applicable here. The holding in Hill is specifically limited to cases involving unscheduled psychiatric or psychological injury , which results from physical trauma. "The question is whether an employee may be compensated for both a scheduled compensable injury under N.C.G.S. § 97-31 and total incapacity for work under N.C.G.S. § 97-29 when the total incapacity is caused by a psychiatric disorder brought on by the scheduled injury. We conclude the answer is yes." Hill at 174, 353 S.E.2d at 397 (emphasis added). Psychological or psychiatric injuries are not covered by the schedule in section 97-31 and therefore "are compensable, if at all, under G.S. 97-29 or G.S. 97-30." McLean v. Eaton Corp., 125 N.C. App. 391, 395, 481 S.E.2d 289, 291 (1997) (citation omitted). Here, unlike the injuries in Hill and McLean, all injuries suffered by plaintiff are covered under the schedule in section 97-31.
We hold that where an employee has received compensation for a brain injury under the total disability provisions of section 97-29, additional recovery is not available for concurrent symptoms caused by that injury. Otherwise, as defendant correctly observes, when carried to its logical limit, plaintiff's argument could result in compensation far beyond that apparently envisioned by the drafters of these statutes. Here, the trauma to plaintiff's head damaged the portions of his brain which control visual and auditory perception, which, in turn, caused plaintiff's loss of sight and hearing. Had a similar but more severe brain injury reduced an employee to a permanently comatose state, he or she would unquestionably be entitled to total disability payments under section 97-29. Under plaintiff's theory, such an employee, although otherwise physically unharmed, could also recover under section 97-31, subsections (1) and (19) for loss of the use of a thumb, (2) and (19) for loss of use of first finger, (3) and (19) for loss of use of second finger, and so on down the schedule. We do not perceive the legislative intent to allow such expansive recovery.
We also note that Hill is consistent with the standard rule disallowing double recovery for the same injury in the same time period. See Gupton, 320 N.C. 38, 357 S.E.2d 674. The victim in Hill was rated partially permanently disabled for a back injury in November, 1980, and since the disability was twenty percent (20%), pursuant to section 97-31(23), he received sixty weeks of compensation. The onset of the depression that rendered him permanently disabled was in November, 1982, by which time he was no longer receiving compensation for the back injury. The employee in Hill was not, therefore, receiving payments under both statutes at the same time for the same injury. By contrast, plaintiff here seeks multiple compensations at one time for a single injury. Since the rule in Hill does not apply to this case, we hold that plaintiff
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