Harrington v. Adams-Robinson Enterprises , 128 N.C. App. 496 ( 1998 )

Judge Walker

dissenting.

I respectfully dissent from the majority opinion holding that the North Carolina Industrial Commission (the Commission) erred when it terminated plaintiff’s benefits after 18 January 1994.

Included in the Commission’s findings were the following:

8. On 17 January 1994 Dr. Gwinn opined that plaintiff had reached maximum medical improvement and released plaintiff from his care to return to work on 18 January 1994. . . .

9. . . . [P]laintiff has remained capable of returning to unrestricted work, including his regular carpenter’s job, since 18 January 1994.

10. Although he has been released to return to unrestricted work plaintiff has not applied for work because he contends that he is no longer capable of the heavy work required by the type of carpenter job he had when he was injured. He also contends that the light work he admits to being capable of performing would pay substantially less than the $10.00 an hour he was earning as a carpenter and would not be appropriate for someone of his education.

13. On 20 July 1994 defendants filed a Form 24 Application of Employer or Insurance Carrier to Stop Payment of Compensation, which was approved by the Commission on 4 August 1994_

Further, the deputy commissioner had found plaintiff’s testimony as to continuing pain was not credible.

In the recent case of In re Stone v. G & G Builders, 346 N.C. 154, 157, 484 S.E.2d 365, 367 (1997), our Supreme Court, in reversing this Court and reinstating the opinion and award of the Industrial Commission stated:

In order to qualify for compensation under the Workers’ Compensation Act, a claimant must prove both the existence and the extent of disability. In the context of a claim for workers’ compensation, disability refers to the impairment of the injured employee’s earning capacity. “If an award is made by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work. . . .” However, as stated in Rule 404(1) of the Workers’ Compensation Rules of the North Carolina Industrial Commission, this presumption of continuing disability is rebut-table. In the instant case the parties entered into a Form 21 Agreement which was approved by the Commission on 24 April 1992. On 13 November 1992 defendants’ Form 24 application to stop payment was approved by the Commission. Any presumptions existing in favor of the employee were rebutted by defendants in this case through medical and other evidence.

(Citations omitted).

Here, the Commission’s findings adequately established that the presumption existing in favor of the plaintiff was rebutted by the defendant through medical and other evidence.

I would affirm the opinion and award of the Industrial Commission.