Smith v. Goodyear Tire & Rubber Co.6/7/2005
(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of working in any employment; (2) the production of evidence that he is capable of some kind of work but that he has, after reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of pre-existing conditions, i.e. age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.
Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993). "Medical evidence that the plaintiff suffers from pain as a result of physical injury, combined with the plaintiff's own testimony that he is in pain has been held to be sufficient to support a conclusion of total disability." Weatherford v. Am. Nat'l Can Co., --- N.C. App. ---, ---, 607 S.E.2d 348, 351 (2005) (citation omitted); Webb v. Power Circuit, Inc.,141 N.C. App. 507, 512, 540 S.E.2d 790, 793 (2000); Barber v. Going West Transp. Inc., 134 N.C. App. 428, 436, 517 S.E.2d 914, 920 (1999); Peoples v. Cone Mills Corp., 316 N.C. 426, 443-44, 342 S.E.2d 798, 808-09 (1986) (holding that an injured employee shall retain benefit eligibility if the employee's age, inexperience, lack of education, or any other pre-existing factors preclude the employee from procuring alternative employment). "The work-related injury need not be the sole cause of the problems to render an injury compensable. If the work-related accident contributed in some reasonable degree to plaintiff's disability, is entitled to compensation ." Smith v. Champion Int'l, 134 N.C. App. 180, 182, 517 S.E.2d 164, 166 (1999) (citing Hoyle v. Carolina Associated Mills, 122 N.C. App. 462, 465-66, 470 S.E.2d 357, 359 (1996)). " pportionment is not proper where the evidence before the Commission renders an attempt at apportionment between work-related and non-work related causes speculative or where there is no evidence attributing a percentage of the claimant's total incapacity to her compensable injury, and a percentage to the non-compensable condition." Royce v. Rushco Food Stores, Inc., 139 N.C. App. 322, 327-28, 533 S.E.2d 284, 288 (2000)(quoting Counts v. Black & Decker Corp., 121 N.C. App. 387, 390-91, 465 S.E.2d 343, 346 (1996) (citations omitted)); Konrady v. United States Airways, Inc., 165 N.C. App. 620, 629, 599 S.E.2d 593, 599 (2004).
Defendant challenges Findings of Fact 4, 19, 20, 21, 22, and 23:
4. On 27 June 1994, plaintiff sustained an admittedly compensable injury by accident to his back, which caused him to miss time from work. The parties executed a Form 21 agreement for payment of compensation, which was approved by the Industrial Commission on 10 August 1994. Plaintiff returned to work inDecember 1994 and continued to work until 10 October 1995. At the time of his injury, plaintiff's average weekly wage was $1,062.59, which entitled plaintiff to a compensation rate of $466.00, the maximum rate for 1994. . . . 19. Dr. Jaufmann testified that diabetic polyneuropathy, which is a slowly progressing problem, and plaintiff's severe bilateral L5 and S1 radiculopathies are problems that affect the same nerves and each can compound the other. Plaintiff's diabetes appears to have pre-existed his 27 June 1994 injury. He also has a history of hypertensive cardiovascular disease that resulted in a heart attack subsequent to his 1994 back surgery. 20. From December 1996 through 26 February 1999 when he was taken out of work, plaintiff consistently complained of moderate to severe l
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