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Chambers v. Transit Management8/16/2005
public safety issues.
19. Plaintiff has not returned to work for defendant or another employer. The greater weight of the evidence demonstrates that plaintiff is incapable of returning to his former employment. Defendant has neither offered work to plaintiff within his restrictions, nor offered or provided vocational rehabilitation or retraining.
There is evidence in the record to support the findings that plaintiff has not returned to work with any employer and that he currently is unable to return to his former employment. However, whether or not plaintiff is able to return to his former employment is not the correct standard for determining disability. The correct standard is whether plaintiff is incapable of earning the same wages he was earning at the time of the injury in the same or alternate employment. N.C. Gen. Stat. 97-2(9) (2003); see Hilliard, 305 N.C. at 395, 290 S.E.2d at 683. The Commission failed to find facts sufficient to allow this Court to review whether the award of continuing disability compensation to plaintiff is adequately supported by the evidence. Therefore, I would remand this matter to the Commission for further findings of fact regarding this issue.
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