Nash v. Conrad Industries, Inc. , 62 N.C. App. 612 ( 1983 )

Judge HEDRICK

concurring in part and dissenting in part.

I concur in that part of the majority decision which affirms the Award of additional compensation to plaintiff for permanent partial disability to her knees; however, I dissent from that part of the majority decision which reverses and remands the cause to the Industrial Commission for findings “as to whether plaintiff was totally disabled for any employment between 8 June 1980 and 1 October 1981.”

A case of temporary total disability within the meaning of the Workers’ Compensation Act is defined as “ ‘one in which the employee is temporarily unable to perform any work duties.’ ” Gamble v. Borden, Inc., 45 N.C. App. 506, 508, 263 S.E. 2d 280, 281 (1980) quoting N.C. Industrial Commission, 24th Biennial Report for 1974-75, 1975-76 (emphasis added). See generally Larson, Workmen’s Compensation Law, Sec. 57.51 (1982). Nowhere in this record is there any evidence that plaintiff was unable to perform any work duties from 2 May 1980 until 1 October 1981. Obviously, plaintiff suffered during this period of time from a permanent partial disability to her back and knees. Dr. Van Blaricom’s testimony, quoted in the majority opinion, rather than indicating temporary total disability, indicates his opinion that plaintiff had some permanent partial disability and is consistent with his testimony on page. 49 of the record where it is stated that, in his opinion, based on his examinations, plaintiff had reached a level of maximum improvement and suffered from a “25% permanent partial disability of the back.” It is also consistent with his deposition testimony in February of 1982, on page 48 of the record, that based on his examination of 1 October 1981, “[plaintiffs] current condition represented a permanent partial disability of 35% of her back or spine.”

Plaintiffs temporary total disability ceased when plaintiff reached a plateau of maximum improvement and she was rated as having a certain degree of permanent partial disability. None of the medical evidence tends to show that plaintiff was temporarily totally disabled from 2 May 1980 to 1 October 1981. All of the medical evidence tends to show that plaintiff suffered from permanent partial disability during that period of time.

Plaintiff stopped work on 2 May 1980 not because of a new injury or the onset of temporary total disability but because the degree of her permanent partial disability had increased to the point where she was unable to continue her usual job duties. Plaintiff has been compensated for this increased permanent partial disability. The gratuitous finding by the Commission that plaintiff was temporarily totally disabled from 2 May 1980 until 8 June 1980 does not alter the fact that plaintiff during this period of time was suffering from her permanent partial disability.

While the evidence conflicts as to the degree of plaintiffs permanent partial disability to her back and knees, there is no conflict in the evidence with respect to whether plaintiff was temporarily totally disabled from 8 June 1980 to 1 October 1981. Thus, there was no necessity for the Commission to make a negative finding that plaintiff was not temporarily totally disabled during that period.

My analysis of plaintiffs appeal would be incomplete were I not to point out that plaintiff chose to pursue her claim on the theory of a compensable injury sustained on 7 June 1977 which resulted in permanent partial disability to her back and later to her knees. The wisdom of her choice is manifest in the fact that she obtained an award for temporary total disability from 8 June 1977 to 6 March 1979 and for a permanent partial disability to her back of 19 percent. This award was later enlarged to compensate plaintiff for temporary total disability from 2 May 1980 until 8 June 1980, 9 percent permanent partial disability to her right leg, 5 percent permanent partial disability in her left leg, and an additional 5 percent permanent partial disability to her back.

In my opinion, that portion of the Award with respect to plaintiffs temporary total disability should be affirmed.