Larramore v. Richardson Sports Ltd. Partners , 141 N.C. App. 250 ( 2000 )

Judge Greene

dissenting.

I disagree with the majority that plaintiff met his burden of proving a “temporary partial disability” within the meaning of the Workers’ Compensation Act. I, therefore, dissent.

“The term ‘disability’ means 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.” N.C.G.S. § 97-2(9) (1999). Disability refers to “a diminished capacity to earn money rather than physical infirmity.” Arrington v. Texfi Indus., 123 N.C. App. 476, 478, 473 S.E.2d 403, 405 (1996). To establish a disability, a claimant must prove:

(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that [plaintiffs] incapacity to earn was caused by [his] injury.

Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). A plaintiff may meet this burden by producing “evidence that he has obtained other employment at a wage less than that earned prior to the injury.” Russell v. Lowes Pro. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993).

In this case, the Commission concluded “plaintiff is entitled to temporary partial disability compensation for the period from June 8, 1995, to the present and continuing for a total of 300 weeks.” The Commission made findings of fact regarding the wages earned by plaintiff subsequent to his injury; however, the Commission did not make any findings of fact comparing plaintiffs post-injury wages to any pre-injury wages. The Commission’s findings of fact, therefore, do not support a conclusion that plaintiff was disabled under the Workers’ Compensation Act due to his inability to earn after his injury “the same wages he had earned before his injury in the same employment . . . [or] any other employment.” Accordingly, I would reverse the opinion and award of the Commission.

Even assuming plaintiff is disabled under the Workers’ Compensation Act, I disagree with the majority that the record contains competent evidence to support the trial court’s finding of fact that “but for plaintiffs injury, plaintiff would have played for the Carolina Panthers during the contract year and would have earned the contract pay of $85,000.00 plus a $1,000.00 signing bonus.” The record shows plaintiff would have earned the contract pay of $85,000.00 only if plaintiff was officially added to the active roster of the Carolina Panthers. Plaintiff, however, was excused from the team without having made the active roster. There is no evidence in the record that plaintiff was excused as a result of his injury. Evidence of plaintiffs prior employment record as a professional football player and his attendance at the pre-season training camp of the Carolina Panthers is not “circumstantial evidence which could lead to an inference that plaintiff’s injury caused his dismissal from the Panthers.” I, therefore, would hold the Commission’s finding of fact that “but for plaintiff’s injury, plaintiff would have played for the Carolina Panthers during the contract year and would have earned the contract pay of $85,000.00 plus a $1,000.00 signing bonus” is not supported by competent evidence in the record. See Bond v. Foster Masonry, Inc., 139 N.C. App. 123, 126, 532 S.E.2d 583, 585 (2000) (appellate review of Commission’s findings of fact is limited to whether findings of fact are supported by competent evidence). Accordingly, the Commission erroneously relied on this finding of fact when computing the amount of plaintiff’s compensation under N.C. Gen. Stat. § 97-2(5) and N.C. Gen. Stat. § 97-30.