Loflin v. Loflin

186 S.E.2d 660 (1972) 13 N.C. App. 574

Joseph L. LOFLIN, Employee, Plaintiff,
v.
James C. LOFLIN, Builder, Employer, Nationwide Mutual Insurance Company, Carrier, Defendants.

No. 7219IC159.

Court of Appeals of North Carolina.

February 23, 1972. Certiorari Denied April 4, 1972.

John Randolph Ingram, Asheboro, for plaintiff appellant.

I. Weisner Farmer, Raleigh, for defendant appellees.

Certiorari Denied by Supreme Court April 4, 1972.

MALLARD, Chief Judge.

"To obtain an award of compensation for an injury under the North Carolina Workmen's Compensation Act, an employee must always show these three things: (1) That he suffered a personal injury by accident; (2) that his injury arose in the course of his employment; and (3) that his injury arose out of his employment. Withers v. Black, 230 N.C. 428, 53 S.E.2d 668. Furthermore, he must establish a fourth essential element, to-wit, that his injury caused him disability, unless it is included in the schedule of injuries made compensable by G.S. § 97-31 without regard to loss of wage-earning power. Branham v. Panel Co., 223 N.C. 233, 25 S. E.2d 865. (Emphasis added.) As used here, the term ``disability' signifies an impairment of wage-earning capacity rather than a physical impairment." Anderson v. Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951). Anderson was decided in 1951. In 1955 the General Assembly, by Section 7 of Chapter 1026 of the Session Laws, enacted what is now G.S. § 97-31(23). The portions of G.S. § 97-31 pertinent to this appeal read as follows:

"In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the periods specified, and shall be in lieu of all other compensation, including disfigurement, to wit:

* * * * * *

(23) For the total loss of use of the back, sixty per centum (60%) of the average weekly wages during 300 weeks. The compensation for partial loss of use of the back shall be such proportion of the periods of payment herein provided for total loss as such partial loss bears to total loss, except that in cases where there is seventy-five per centum (75%) or more loss of use of the back, in which event the injured employee shall be deemed to have suffered "total industrial disability' and compensated as for total loss of use of the back." (Emphasis added.)

The plaintiff contends that all of the evidence shows that, due to the injury to his back, he is totally unable to perform the essential duties of a carpenter, his occupation prior to his injury, and that the North Carolina Industrial Commission (Commission) committed error in failing to so find. The Commission made factual findings, supported by competent evidence, on all of the crucial issues before it. Under these findings, the disability deemed to continue after the healing period of plaintiff's injuries is made compensable under the provisions of G.S. § 97-31(23) without regard to the loss of wage-earning power and in lieu of all other compensation. See, Dudley v. Downtowner Motor Inn, 13 N. C.App. 474, 186 S.E.2d 188 (1972). The General Assembly, when it enacted G.S. § 97-31 and, in 1955, made it applicable to the partial loss of use of the back, provided that compensation payable thereunder was "in lieu of all other compensation." "The language of G.S. § 97-31 is clear, and its provisions are mandatory." Watts v. Brewer, 243 N.C. 422, 90 S.E.2d 764 (1956). The fact that an injury is one of those enumerated in the schedule of payments set forth under G.S. § 97-31 precludes the Commission from awarding compensation under any other provision of the Act. Watts v. Brewer, supra. Under the provisions of G.S. § 97-31, plaintiff was entitled to, and did receive compensation for disability from his injuries during the healing period. Plaintiff's contention that he is still temporarily totally disabled is not supported by the evidence or the findings of the Commission. "Where a claimant suffers an injury that results in temporary total disability followed by a specific disability compensable under G.S. 97-31, compensation for the specific disability is payable in addition to that awarded for temporary total disability." Watkins v. Motor Lines, 279 N.C. 132, 181 S. E.2d 588 (1971).

It was found by the Commission upon competent evidence that plaintiff had reached maximum improvement on 3 June 1968 and that further treatment would not lessen his period of disability. The healing period was over. Thereafter, plaintiff was entitled to receive compensation only as provided in G.S. § 97-31(23), and such compensation was properly awarded by the Commission.

We have examined plaintiff's other exceptions and no prejudicial error is made to appear. The case of Morgan v. Furniture Industries, Inc., 2 N.C.App. 126, 162 S.E.2d 619 (1968), cited and relied on by plaintiff, is distinguishable. In Morgan, the question was raised but no finding was made concerning the mental, emotional, and psychological incapacity of the claimant resulting from an injury. The case was remanded to the Commission with instructions "to make findings of fact determinative of all questions at issue and proceed as the law requires." In the case before us, there have been findings supported by competent evidence with respect to all crucial facts.

The opinion and award appealed from is

Affirmed.

MORRIS and PARKER, JJ., concur.