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Poe v. Raleigh/Durham Airport Authority12/19/1995
disc. review denied, 323 N.C. 171, 373 S.E.2d 104 (1988).
The facts in the instant case indicate that plaintiff sustained an injury to his back on 3 May 1988 while performing certain tasks for his employer, defendant RDU. Defendant RDU has paid plaintiff for periods of temporary total disability pursuant to I.C. Forms 21 and 26 (five in total). Further, on 6 August 1990, plaintiff did re-injure his back during and in the course of employment with defendant Britt Services, which caused a "temporary flare-up" of plaintiff's pre-existing injury. Plaintiff was seen by his family physician after this accident and reported that he was experiencing increased back and leg problems. Plaintiff later sought further medical treatment some eight months later. On 16 April 1991, plaintiff was seen by Dr. Fuchs, a neurosurgeon. Subsequently, on 11 October 1991, Dr. St. Clair, another neurosurgeon, performed a third operation on plaintiff's injured back. Plaintiff had left the employ of defendant Britt Services in November 1990.
The evidence indicates that, after leaving Britt Services, plaintiff was unable to find another job , due to his severe physical restrictions, coupled with his vocational and educational limits. Plaintiff is a fifty-two (52) year old functional illiterate. There is an abundance of medical and other expert opinion that plaintiff is unable to earn any wages, in the kind of work he did, or any other type of job. The Commission's reliance on Click v. Freight Carriers, 300 N.C. 164, 265 S.E.2d 389 (1980) is misplaced. Click stands for the proposition that expert medical testimony will be required to establish causation in the more complicated cases involving disc injuries.
In the case sub judice, the record is rife with testimony that plaintiff suffered a compensable work-related injury on 3 May 1988, which caused damage to the lumbar region of plaintiff's back. If the Commission was able to determine that the accident on 6 August 1990 caused a "temporary flare-up" of plaintiff's pre-existing injury, it follows that plaintiff's change in wage earning capacity must be a result of that same pre-existing injury. The Commission's findings and Conclusions to the contrary are unsupported by the evidence and must, therefore, be reversed.
Plaintiff also argues that the Full Commission lacked jurisdiction to review his appeal, as two deputy commissioners participated in the review, in violation of North Carolina General Statutes section 97-85. For this reason, the plaintiff contends that the final Opinion and Award of the Industrial Commission is void as a matter of law. Notably, plaintiff poses this collateral attack for the first time on appeal; plaintiff failed to raise any objection to the panel's composition at the Full Commission level. We find this argument to be without merit.
"The Commission acts by a majority of votes of its qualified members at the time a decision is made," and a vote of two members constitutes a majority. Estes v. N.C. State University, 117 N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994) (citing Gant v. Crouch, 243 N.C. 604, 607, 91 S.E.2d 705, 707 (1956)). North Carolina General Statutes section 97-85 states in pertinent part:
Provided further, the chairman of the Industrial Commission shall have the authority to designate a deputy commissioner to take the place of a commissioner on the review of any case, in which event the deputy commissioner so designated shall have the same authority and duty as does the commissioner whose place he occupies on such review.
N.C. Gen. Stat. ยง 97-85 (1991). Plaintiff references Estes in support of his argument. His reliance on Estes is, however, misplaced. The Commission
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