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Burwell v. Winn-Dixie Raleigh Inc.3/15/1994
iff presented substantial evidence that he was unable, as a result of injuries sustained in the course and scope of his employment with defendant-employer, to earn any wages in the same or other employment. The defendant-employer presented evidence that there were several available suitable jobs within plaintiff's "locality." Plaintiff argues that he is physically incapable of performing any job and even if he were capable, that there is no evidence that he is "capable of getting" any of the jobs found by the defendant-employer.
In this case, although there is some conflict in the evidence, there was competent evidence from Mr. Lentz that plaintiff, taking into account his age, education, physical limitations, and vocational skills, was capable of performing certain jobs that were available "within a thirty-five to fifty mile radius" of his home. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982) (findings of the Commission are binding on appeal if supported by competent evidence). This evidence is sufficient to satisfy the defendant-employer's burden of showing that there existed a reasonable likelihood that plaintiff would be hired if he diligently sought employment in the jobs found by the defendant-employer. See Tyndall, 102 N.C. App. at 729, 403 S.E.2d at 550 (evidence that "jobs were available in the immediate area for persons with the experience of claimant" held sufficient to satisfy employer's burden).
Although plaintiff did offer evidence to refute the evidence of Mr. Lentz, the Commission chose instead to believe Mr. Lentz's testimony. Matthews v. Petroleum Tank Serv., Inc., 108 N.C. App. 259, 264, 423 S.E.2d 532, 535 (1992) (Commission is the sole Judge of the credibility of witnesses). Accordingly, the Commission did not err in concluding that plaintiff was capable of earning wages and was therefore entitled only to compensation for permanent partial disability compensation rather than for permanent total disability under N.C. Gen. Stat. ยง 97-29.
Three of the five remaining assignments of error argued by the plaintiff relate to the sufficiency of the evidence to support the findings made by the Commission. We have reviewed each of the questioned findings and determine that there was competent evidence to support each finding. We have reviewed and reject plaintiff's remaining two assignments claiming that the Commission erred in failing to make findings of fact concerning plaintiff's pain.
Affirmed.
Judges COZORT and ORR concur.
Disposition
Affirmed.
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