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Radica v. Mills2/1/1994
!--REF-->71 N.C. App. at 784, 323 S.E.2d at 49. On the other hand, once the disability is proven, there is a presumption that it continues until "the employee returns to work at wages equal to those he was receiving at the time his injury occurred." Watkins v. Motor Lines, 279 N.C. 132, 137, 181 S.E.2d 588, 592 (1971).
Watson v. Winston-Salem Transit Authority, 92 N.C. App. 473, 475-76, 374 S.E.2d 483, 485 (1988). In this record, there is no evidence to support a finding that plaintiff retained any earning capacity as of 21 September 1988, the date on which she was released to return to work by Dr. Dickerson and on which her temporary total disability benefits were terminated. Here, plaintiff has carried her initial burden, id., of showing that she was disabled. The record discloses that defendant admitted liability under the Workers' Compensation Act through approved settlements (I.C. Form 21 and I.C. Form 26). Plaintiff began to receive temporary total disability payments on 8 May 1988 and the parties have stipulated that these payments continued until her release to return to work was authorized by defendant-employer's physician on 21 September 1988. An employee's release to return to work is not the equivalent of a finding that the employee is able to earn the same wage earned prior to the injury , nor does it automatically deprive an employee of the benefit of the Watkins v. Motor Lines presumption. Cf. Watson, 92 N.C. App. at 476, 374 S.E.2d at 485 (finding of maximum medical improvement is not the same as a finding that the employee is able to earn the same wage earned prior to the injury ). After plaintiff meets her initial burden, the burden shifts to defendants who must show that plaintiff is employable. Id . ; Lackey v. R.L. Stowe Mills, 106 N.C. App. 658, 662, 418 S.E.2d 517, 519-20, disc. review denied, 332 N.C. 345, 421 S.E.2d 150 (1992). The Deputy Commissioner's findings and Conclusions are devoid of any indication that defendant met its burden of showing that on 21 September 1988 plaintiff was capable of earning the same wage that she had earned prior to the injury . Accordingly, we conclude that defendants have failed to overcome the Watkins v. Motor Lines presumption.
II.
Plaintiff contends that the Industrial Commission erred "by denying workers' compensation benefits for continuing disability to the plaintiff on the basis that she had failed to show that her work-related injury to her back caused her inability to work after September 21, 1988." We agree.
We note that the parties here have executed I.C. Forms 21 and 26, which were subsequently approved by the Industrial Commission. Furthermore, the sole issue before the Deputy Commissioner in this proceeding was a determination of whether plaintiff was entitled to further benefits. In Lucas v. Thomas Built Buses, 88 N.C. App. 587, 591, 364 S.E.2d 147, 150 (1988), this Court stated:
The record contains two agreements, IC Forms 21 and 26, in which defendants agree to pay compensation for plaintiff's back injury . The record also reveals that the only issue before the Commission was whether plaintiff's compensation should continue, not whether his alleged disability was the result of [the employee's] accident. G.S. 97-17 provides that, "no party to any agreement for compensation approved by the Industrial Commission shall thereafter be heard to deny the truth of matters [therein] set forth, unle
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