Ashley v. Rent-A-Car Company , 271 N.C. 76 ( 1967 )

155 S.E.2d 755 (1967) 271 N.C. 76

Robert B. ASHLEY, Employee
v.
RENT-A-CAR COMPANY, Inc., Employer, and Cosmopolitan Insurance Company, Carrier.

No. 768.

Supreme Court of North Carolina.

July 24, 1967.

Hofler, Mount & White and Richard M. Hutson, Durham, for plaintiff.

Spears, Spears & Barnes, Durham, for defendants.

BRANCH, Justice.

Defendants contend there is not sufficient competent evidence to support the findings of fact and to justify the conclusions of law that the operative procedures now recommended by claimant's physicians or that the nursing and medical care received by claimant after 12 June 1963 tend to lessen claimant's period of disability so as to impose liability for the payment thereof on defendants.

"G.S. § 97-25 provides, inter alia: "Medical, surgical, hospital, nursing services, medicines, sick travel, and other treatment including medical and surgical supplies as may reasonably be required, for a period not exceeding ten weeks from date of injury to effect a cure or give relief and for such additional time as in the judgment of the Commission will tend to lessen the period of disability * * * shall be provided by the employer. * * *" (Emphasis ours)

G.S. § 97-2(9) provides: "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."

Defendants first argue there is no disability under the workmen's compensation statute since plaintiff is receiving the same wages he received before his injury. In support of this contention, they cite and rely on Branham v. Denny Roll Panel Co., 223 N.C. 233, 25 S.E.2d 865, where claimant suffered an injury in the course of his employment which resulted in a permanent partial disability in the use of his back. He lost no compensable time from work, but was unable to do the same physical work because of his injury. His employer assigned him to other duties at the same wage. All medical bills, except those of Duke Hospital and for dental services, had been paid by employer or the insurance carrier. Upon hearing plaintiff's claim, the Industrial Commission, inter alia, ordered that the defendants pay to the proper parties "the reasonable medical, surgical and hospital costs of treatments rendered the claimant at Duke Hospital and for payment of dental bills incurred as a result of his injury by accident, after bills have been submitted to and approved by the Commission." It found that plaintiff had lost no wages and therefore denied compensation, but retained jurisdiction in the event his injuries should diminish his wages within 300 weeks from the date of the accident. Plaintiff appealed. Affirming the conclusions and award of the Industrial Commission, this Court stated:

"The statute provides no compensation for physical pain or discomfort. It is limited to the loss of ability to earn. ``The loss of his capacity to earn * * * is the basis upon which his compensation must be based.' * * * ``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.' * * * In short, under our Act wages earned, or the capacity to earn wages, is the test of earning capacity, or, to state it differently, the diminution of the power or capacity to earn is the measure of compensability. * * * However urgently he may insist that he is ``not able to earn' his wages, the fact remains that he is receiving now the same wages he earned before his injury. That fact cannot be overcome by any amount of argument. It stands as an unassailable answer to any suggestion that he has suffered any loss of wages within the meaning of the Act."

Branham v. Denny Roll & Panel Company, supra, is readily distinguishable from the instant case, in that Branham dealt with compensation for disability, dependent as to amount upon whether the injury produced a permanent total, a permanent partial, a total temporary, or a partial temporary incapacity to earn wages. The Court was applying the rule in Branham to determine the actual difference between wages earned prior to the injury and wages earned after the injury. It is conceded that in some cases growing out of G.S. § 97-30 it becomes necessary to apply this rule in order to determine the amount of compensation due. However, this would not be applicable to medical, surgical, hospital, and nursing services under G.S. § 97-25, as medical and hospital expenses are not a part of and are not included in determining recoverable compensation. Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109; Morris v. Laughlin Chevrolet Co., 217 N.C. 428, 8 S.E.2d 484, 128 A.L.R. 132; Hedgepeth v. Lumbermen's Mut. Casualty Co., 209 N.C. 45, 182 S.E. 704; Hoover v. Globe Indemnity Co., 202 N.C. 655, 163 S.E. 758. We note that in Branham the Court approved the allowance of all medical bills without any reference to whether they were incurred within the 10-week period from the date of injury, or whether they tended to "lessen the period of disability." Further, in Branham the Commission found that the employee was partially disabled and awarded compensation for 300 weeks, less such time as he was paid full wages. It also found that he had been paid full wages in lieu of compensation. Therefore, under those facts the Court held that he could not receive compensation in addition to full wages and medical expenses. The determination of disability was not before the Court, and its comment concerning the definition of "disability" was mere dictum.

In Hill v. DuBose, 234 N.C. 446, 67 S.E.2d 371, the Court considered a compensation case in which the award for partial permanent disability was based upon a finding as to the amount the claimant had earned since the date on which the total permanent disability had ceased, rather than upon his capacity or ability to earn. Holding this to be error, the Court, speaking through Chief Justice Devin, said:

"* * * ``The disability of an employee because of an injury is to be measured by his capacity or incapacity to earn the wages he was receiving at the time of the injury. Branham v. Denny Roll & Panel Co., 223 N.C. 233, 25 S.E.2d 865; Anderson v. Northwestern Motor Co., [ante, p. 372] 233 N.C. 372, 64 S.E.2d 265. Loss of earning capacity is the criterion.' Compensation must be based upon loss of wage-earning power rather than the amount actually received. It was intended by the statute to provide compensation only for loss of earning capacity. Hence, the finding that claimant had earned $7 per week for the period from 25 November, 1949, to 18 July, 1950, was not the proper basis for determining the award under the statute." (Emphasis ours) Accord: Evans v. Asheville Citizens Times Co., 246 N.C. 669, 100 S.E.2d 75.

Here, the Court made capacity to earn the same wages, and not the particular employer's policy or willingness to pay wages for an undetermined time, the test of disability.

In the instant case it would indeed be harsh to deprive claimant of medical expenses otherwise due him on the theory that his capacity to earn wages was not diminished because his employer saw fit, from motives of generosity or otherwise, to continue to pay the same wages after his injury. It would strain credulity to hold that an employee who was in a semi-conscious condition for ten weeks after an injury, or confined to the hospital in a cast, was not disabled. A fortiorari the act of his employer in paying his wages in full from the date of the injury should not be determinative of the employee's disability and thereby relieve the employer or insurance carrier from liability for hospital and medical care designed to improve his capacity to earn wages. It would be unconscionable to hold that a man who had been so severely burned and disfigured that he is unable to hold a pencil, pick up a water glass, or lift his arm high enough to comb his hair has not suffered any diminished capacity to earn wages simply because his employer, for an indeterminate period of time continues to pay claimant the same wages he received before the injury. The rule adopted by the majority of the decisions since Branham v. Denny Roll & Panel Co., supra, is: Under the Workmen's Compensation Act disability refers not to physical infirmity but to a diminished capacity to earn money. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265; Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438; Hill v. DuBose, supra; Watts v. Brewer, 243 N.C. 422, 90 S.E.2d 764; Barnhardt v. Yellow Cab Co., 266 N.C. 419, 146 S.E.2d 479.

The Branham case was last cited in Burton v. Blum, N.C., 155 S.E.2d 71. However, the Burton case is distinguishable from the instant case in that the claimant sought to recover on the basis of continuing "total disability" from the date of the accident to the date of intestate's death, a period of approximately thirty months. The evidence showed actual employment and payment of wages during the period which completely refuted continuing total disability. In the instant case we have a claim for medical expenses which is not based on continuing total disability.

This Court said in Pratt v. Central Upholstery Co., 252 N.C. 716, 115 S.E.2d 27:

"It is true that there is a presumption that disability ends when the employee returns to work. Tucker v. Lowdermilk, 233 N.C. 185, 189, 63 S.E.2d 109. But this is a presumption of fact and not of law. This Court has held that a rebuttable presumption may not under certain circumstances be weighed against the evidence."

Receipt of the same wages after injury should create no stronger presumption than the presumption which arises on an employee's returning to work. In both instances a rebuttable presumption of fact arises. In re Will of Wall, 223 N.C. 591, 27 S.E.2d 728. See Annotations: 149 A.L.R. 413 and 118 A.L.R. 731.

Certainly the amount of wages received by the employee after his injury should be strong evidence of his capacity or incapacity to earn wages, but under the conditions here disclosed receipt of wages in the amount received before the injury cannot be conclusive proof that no "disability" exists. How long will employer continue to employ claimant if his condition remains unchanged? What would become of claimant if employer should not continue his business? Must claimant continue to be employed by the same employer against his will in order to receive payment of compensation or medical expenses?

In support of their position, defendants further contend that there is not sufficient evidence to support the finding that treatment will tend to lessen the period of disability. In this connection defendants rely on the case of Millwood v. Firestone Cotton Mills, 215 N.C. 519, 2 S.E.2d 560, where an employee developed dementia praecox after hospitalization resulting from an accident in the course of her employment. The evidence revealed her condition to be incurable, requiring her to be confined to an institution for the remainder of her life. The Court held there was not sufficient evidence to sustain an award of additional medical attention, since there was "no evidence that treatment would tend to lessen the period of her disability."

The facts in the instant case differ in that here, not only may claimant's condition be improved and disability lessened, but there is competent medical evidence that treatment will tend to lessen the period of disability. Dr. Arthur B. Bradsher, a medical expert in the field of neurosurgery, inter alia, testified: "Operative procedures performed upon his right hand tended to lessen his period of disability. * * * I would hazard an estimate that further operative procedures on Mr. Ashley's left arm would tend to lessen his period of disability on this arm, but improvement would be limited. * * * He has improved in the fifteen months that I have seen him, partially because of medical treatment and operative procedures."

Dr. Lewis McKee, plaintiff's family physician, testified: "In my opinion, if Mr. Ashley has corrective Orthopedic and plastic surgery, it will lessen his disability. * * * Mr. Ashley is permanently disabled at the present time. Corrective surgery would lessen the period of his disability."

It would appear from the medical testimony that the treatment proposed for claimant and the treatment rendered was such that it would tend to increase claimant's capacity to work.

G.S. § 97-30 in part provides: "Except as otherwise provided in § 97-31, where the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such disability, a weekly compensation equal to 60 per centum of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than thirty-seven dollars and fifty cents ($37.50) a week, and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of injury. * * *"

Under this statute compensation for permanent partial disability is measured by the degree of disability, except in case of loss of a member as specified in G.S. § 97-31. Ordinarily, where permanent disability is reduced to a lesser degree, the employer or insurance carrier is benefitted, since the amount of compensation to be paid is lessened. We do not believe the Legislature which enacted the Workmen's Compensation Act intended that there must be complete recovery within a stated time in order that an employee might continue to receive medical benefits under the statute beyond the ten-week period.

"The Compensation Act requires that it be liberally construed to effectuate the objects for which it was passed—to provide compensation for workers injured in industrial accidents. * * * It is the duty of the court to determine whether, in any reasonable view of the evidence, it is sufficient to support the critical findings necessary to permit an award of compensation. The court does not weigh the evidence. That is the function of the Commission. If there is any evidence of substance which directly, or by reasonable inference, tends to support the findings, the courts are bound by them, "even though there is evidence that would have supported a finding to the contrary.' Searcy v. Branson, 253 N.C. 64, 116 S.E.2d 175." Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E.2d 342.

We hold that the evidence before the Commission was sufficient to support its findings and conclusions and to sustain the award.

The judgment of the court below is

Affirmed.