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Shoemaker v. Creative Builders6/4/2002
that he returned to work and earned wages from at least two employers while he was receiving total disability compensation. However, "mere proof of return to work is insufficient to rebut the . . . presumption [of disability]," because capacity to earn in suitable employment is the "benchmark test of disability." Kisiah v. W.R. Kisiah Plumbing, 124 N.C. App. 72, 81, 476 S.E.2d 434, 439 (1996), disc. review denied, 345 N.C. 343, 483 S.E.2d 169 (1997).
Here, the facts establish that plaintiff was unable to find regular work even with the assistance of a vocational specialist. He was unable to maintain any employment for more than a few weeks. Moreover, plaintiff offered medical testimony that he would never be able to work again. The competent evidence presented to the Commission supports its finding that plaintiff is totally and permanently disabled. This assignment of error is overruled.
By defendants' second assignment of error, they contend the Commission erred by finding plaintiff would not benefit from participating in a vocational rehabilitation program at Goodwill Industries.
The Commission may order vocational rehabilitation which it determines to be reasonably necessary. See N.C. Gen. Stat. § 97-25 (1999). In support of their argument, defendants cite the deposition of McInnis, who stated that plaintiff "could be employed with a lot of help."
McInnis, however, continued: "But as an independent employee . . . with all the responsibilities that people normally have, I think there are problems with that." McInnis further stated that defendant would need to work with "people that are very . . . sympathetic . . . to his problems" and are "able willing to work with him." He was then asked if, in his opinion, it would be appropriate to first put plaintiff into something like a sheltered workshop in order to develop a vocational rehabilitation plan. McInnis replied: "I think so. I haven't discussed it with him, and I don't know how he would react to it."
Kaur, who most recently treated plaintiff, repeatedly recommended against sending plaintiff to Goodwill Industries. Badawi concurred, saying plaintiff could not function "even in such a structured environment as Goodwill Industries offers." Requiring him to work even in a structured environment would, according to Badawi, ultimately lead to hospitalization. The Commission's finding that vocational rehabilitation in this case is futile is supported by competent evidence and we therefore reject this assignment of error.
By their third assignment of error, defendants contend the Commission erred in concluding that defendants are responsible for medical expenses associated with plaintiff's motor vehicle accident on 30 January 1997.
"The basic rule is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury." 1 Arthur Larson, The Law of Workmen's Compensation § 10.01 (2000). Plaintiff testified here that the accident was precipitated by seizurelike activity. Although the doctors are uncertain as to whether the seizure-like activity was due to an actual seizure or an anxiety or panic attack, they agree that either condition was the result of his cognitive or emotional disabilities caused by the compensable encephalitis. In either case, the relationship is direct. Further, case law clearly establishes that injuries resulting from an intervening cause do not preclude compensation, unless the employee intentionally caused the subsequent injury. See English v. J.P. Stevens & Co., 98 N.C. App. 466, 471, 391 S.E.2d 499, 502 (1990). There is substantial, c
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