Coppley v. PPG Industries, Inc. , 133 N.C. App. 631 ( 1999 )

516 S.E.2d 184 (1999)

Patty T. COPPLEY, Employee, Plaintiff,
v.
PPG INDUSTRIES, INC., Self-Insured, Employer, Defendant.

No. COA98-1166.

Court of Appeals of North Carolina.

June 15, 1999.

O'Briant, Bunch, Robins & Stubblefield, by Julie H. Stubblefield, Asheboro, for plaintiff-appellee.

Brinkley Walser, PLLC, by G. Thompson Miller, Lexington, for defendant-appellant.

EAGLES, Chief Judge.

Here we consider whether the Commission misapplied the law by erroneously placing the initial burden on defendant to prove that plaintiff was capable of earning pre-injury wages in other employment without first requiring plaintiff to meet her initial burden of proving all three Hilliard "disability" factors. In worker's compensation cases, plaintiff has the initial burden of proving that he suffers from a disability as a result of a work-related injury. Harrington v. Adams-Robinson Enterprises, 128 N.C.App. 496, 498, 495 S.E.2d 377, 379, rev'd on other grounds, 349 N.C. 218, 504 S.E.2d 786 (1998). "Disability" is a technical term, meaning that because of a workplace injury the employee suffers from an "incapacity ... to earn the wages which the employee was receiving at the time of the injury in the same or any other employment." G.S. 97-2(9). To support a conclusion of disability, the Commission must find facts indicating that plaintiff has met her initial burden of proving that: (1) she was incapable of earning pre-injury wages in the same employment, (2) she was incapable of earning pre-injury wages in any other employment, and (3) the incapacity to earn pre-injury wages in either the same or other employment was caused by plaintiff's injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). To prove disability, the employee need not prove she unsuccessfully sought employment if the employee proves that, because of her age, work experience, training, education, or any other factor, seeking employment at pre-injury wages would be futile. Grantham v. R.G. Barry Corp., 115 N.C.App. 293, 300, 444 S.E.2d 659, 663 (1994). Once the employee has met her initial burden of proving "disability," the burden then shifts to the employer to produce evidence that suitable jobs are available for the employee and that the employee is capable of obtaining a job at pre-injury wages. Burwell v. Winn-Dixie Raleigh, Inc., 114 N.C.App. 69, 73, 441 S.E.2d 145, 149 (1994). However, in worker's compensation cases the initial burden has always been on the plaintiff to produce competent evidence of all three Hilliard factors before the burden shifts to defendant to rebut plaintiff's evidence. Were this not so, worker's compensation cases would commence with a presumption of disability, which is clearly not the law in North Carolina. Furthermore, to ensure effective appellate review, the Commission's findings must sufficiently reflect that plaintiff produced evidence to prove all three Hilliard factors.

The Industrial Commission must make specific findings of fact as to each material fact upon which the rights of the parties in a case involving a claim for compensation depend. If the findings of fact of the Commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the cause must be remanded to the Commission for proper findings of fact.

Hansel v. Sherman Textiles, 304 N.C. 44, 59, 283 S.E.2d 101, 109-10 (1981) (citations omitted).

Here, the Commission stated in finding of fact # 12 that defendant failed to produce evidence that plaintiff was capable of earning pre-injury wages in any other employment. In other words, the Commission found that defendant failed to prove the absence of the second Hilliard factor. However, the opinion and award contains no findings indicating whether plaintiff first met her initial burden of proving the existence of the second Hilliard factor—that she was incapable of earning pre-injury wages in any other employment. The findings do not indicate whether plaintiff offered any evidence that she either unsuccessfully sought other employment offering pre-injury wages or that, given her age, experience, training, education, and any other factors, seeking employment at pre-injury wages would have been futile. Although the Commission did make findings regarding plaintiff's age and work experience, the findings do not indicate whether the Commission considered to what extent, if any, those factors affected plaintiff's ability to earn wages after her injury. Heffner v. Cone Mills Corp., 83 N.C.App. 84, 89, 349 S.E.2d 70, 75 (1986). We conclude that the Commission did not make findings sufficient to show whether plaintiff produced evidence of all three Hilliard factors before shifting the burden to defendant to rebut plaintiff's evidence. Accordingly, we conclude that the Commission erroneously placed the initial burden on defendant to prove the absence of the second Hilliard factor before plaintiff had met her initial burden. We therefore reverse and remand to the Commission for further proceedings consistent with this opinion.

Reversed and remanded.

Judges LEWIS and HORTON concur.