Key v. McLean Trucking ( 1983 )

300 S.E.2d 280 (1983) 61 N.C. App. 143

Terry M. KEY, Employee,
v.
McLEAN TRUCKING, Employer, Self-Insured.

No. 8210IC225.

Court of Appeals of North Carolina.

March 1, 1983.

Douglas P. Dettor and Judith G. Behar, Greensboro, for plaintiff-appellant.

Wayne H. Foushee, Winston-Salem, for defendant-appellee.

ARNOLD, Judge.

The plaintiff argues that it was improper to consider diminution of earning capacity in the award when his injury was compensable under G.S. 97-31(24). We disagree.

The relevant portion of G.S. 97-31 states: In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation ...

(24) In case of the loss of or permanent injury to any important external or internal organ or part of the body for which no compensation is payable under any other subdivision of this section, the Industrial Commission may award proper and equitable compensation not to exceed ten thousand dollars ($10,000) (emphasis added).

Although disability compensation under G.S. 97-31 is awarded for physical impairment irrespective of ability to work or loss of wage earning power, Crawley v. Southern Devices, Inc., 31 N.C.App. 284, 229 S.E.2d 325 (1976), disc. rev. denied, 292 N.C. 467, 234 S.E.2d 2 (1977); Loflin v. Loflin, 13 N.C.App. 574, 186 S.E.2d 660, cert. denied, 281 N.C. 154, 187 S.E.2d 585 (1972), we find nothing in the statute or the case law that forbids consideration of loss of earning capacity.

G.S. 97-31 provides that recovery for an injury compensable under one of its subsections "shall be in lieu of all other compensation...." Because the award concluded that the plaintiff's injury was to an important part of the body and there is competent evidence to support this finding, his injury falls within subsection (24) and is compensable.

Cases cited by the plaintiff for the contention that earning capacity cannot be considered here are unpersuasive. All three cases that he cites stand only for the proposition that a claimant can recover under G.S. 97-31 without proving a loss of earning capacity. Those cases also deal with other subsections of G.S. 97-31 than the case sub judice. See Perry v. Furniture Co., 296 N.C. 88, 249 S.E.2d 397 (1978); Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874 (1968); Watts v. Brewer, 243 N.C. 422, 90 S.E.2d 764 (1956).

Our courts have not explicitly stated that earning capacity can be considered in a G.S. 97-31(24) award. But two cases support our holding. Although Shuler v. Talon Div. of Textron, 30 N.C.App. 570, 227 S.E.2d 627 (1976), was decided on a different question than the one before us, the court there implicitly approved an award of $3,500 for diminution of earning capacity for a G.S. 97-31(21) and (22) injury. We also note dictum in Arrington v. Engineering Corp., 264 N.C. 38, 140 S.E.2d 759 (1965), that "Under the present law, G.S. 97-31(24), an award of compensation for loss of sense of taste or smell would unquestionably be sustained, where from the circumstances it could be reasonably presumed that the workmen suffered diminution of his future earning power by reason of such loss." 264 N.C. at 40, 140 S.E.2d at 760.

The claimant's other three arguments attack two findings of fact and one conclusion of law. He contends that it was error to find as a fact that:

14. Claimant was capable of earning wages as a road driver when he returned to work on 21 February 1979 as a dock worker....

16. Claimant experienced permanent injury to an important part of the body (sixth cranial nerve) that may be reasonably presumed to cause a diminution of his future earning capacity, the value of which is $7,500.00.

He also argues that it was error to conclude: "1. The permanent injury to claimant's sixth cranial nerve did not result in loss of an eye or loss of vision of an eye."

On an appeal from an award of the Industrial Commission, our review is limited to the questions "(1) whether there was competent evidence before the Commission to support its findings and (2) whether such findings support its legal conclusions." Perry, 296 N.C. at 92, 249 S.E.2d at 400 and cases cited therein. See also G.S. 97-86 (An award is "conclusive and binding as to all questions of fact."). Based on our examination of the record before us, we hold that the evidence supports the Commission's findings and that the findings support its conclusions of law. As a result, we affirm the Commission's opinion and award.

Affirmed.

HILL and WHICHARD, JJ., concur.