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Gilliam v. Perdue Farms11/2/1993
The issue presented by this worker's compensation case is whether the Industrial Commission erred in concluding that claimant is permanently and totally disabled, entitling claimant to compensation under N.C. Gen. Stat. § 97-29 (1991).
Our review of an Industrial Commission's award is limited to two questions: (1) whether there was competent evidence before the Commission to support its findings of fact, and (2) whether the findings support the legal Conclusions. Hansel v. Sherman Textiles, 304 N.C. 44, 49, 283 S.E.2d 101, 104 (1981). The findings of the Industrial Commission are conclusive on appeal when supported by competent evidence even though there may be evidence to support a contrary finding. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). Whether a disability exists is a Conclusion of law which must be based upon findings of fact supported by competent evidence. Id. at 594-95, 290 S.E.2d at 683.
N.C. Gen. Stat. § 97-2(9) (1991) defines "disability" as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." See Taylor v. Pardee Hospital, 83 N.C. App. 385, 389, 350 S.E.2d 148, 151 (1986), disc. review denied, 319 N.C. 410, 354 S.E.2d 729 (1987). Our Supreme Court has stated that in order to support a Conclusion of disability, the Commission must find: (1) that claimant was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that he was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that his incapacity to earn was caused by his injury. Hilliard, 305 N.C. at 595, 290 S.E.2d at 683. In reviewing the record, we find competent evidence to support the challenged findings of fact which in turn support the Commission's legal Conclusion, and therefore affirm the Commission's award.
Claimant is an illiterate, 36 year-old male, with only an eighth grade education. He is mildly mentally retarded and has cognitive defects affecting his memory, concentration, and attention. His work experience has been limited. Prior to working at Perdue Farms, he operated a stationary radial saw and built tobacco barns and pea pickers. Both of these jobs required lifting, prolonged sitting, and standing. On 30 January 1989, claimant, who worked for defendant
employer as a chicken catcher and forklift driver, sustained an injury by accident arising out of and in the course of his employment when he was involved in a vehicular accident while riding as a passenger in a truck on the way to catch chickens.
As a result of his accident, claimant saw a number of medical doctors and vocational consultants. He complained that because of the pain he could not perform his previous job, which required stooping and lifting, and had difficulty lying in bed. Dr. George Miller diagnosed claimant as having cervical and lumbar sprains and assigned to him ratings of 7% permanent partial impairment of the cervical spine and 10% permanent partial impairment of the lumbar spine. Melinda Evans assessed claimant's functional capacity at Pitt County Memorial Hospital beginning 10 November 1989. In her report, Ms. Evans noted that claimant's tolerance for activity did not appear appropriate at that time for either working or a work-hardening program. Judy Sedor, a vocational rehabilitati
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