Perry v. Hibriten Furniture Co.

CLARK, Judge.

The plaintiff has grouped his assignments of error into two arguments: that the Commission erred in finding as fact that, first, plaintiff reached maximum improvement on 25 March 1976, and, second, plaintiff had a 50% permanent partial disability of the back.

The argument that plaintiff had not reached maximum improvement on 25 March 1976 is based on the medical evidence that on that date he was suffering pain in the back and legs, that Dr. Waller (the treating orthopedist) recommended “further treatment for the purpose to attempt to relieve him of his leg pain,” and that Dr. McBryde (the consulting orthopedist) was of the opinion that surgery might help reduce pain. Plaintiff contends that this evidence establishes that the healing period had not reached a point of stabilization because there was still the possibility of improvement with further treatment or another operation. A recent decision of this Court, in a case with factual circumstances somewhat similar to the case before us, defined “healing period” as follows:

“The healing period, within the meaning of G.S. 97-31, is the time when the claimant is unable to work because of his injury, is submitting to treatment, which may include an operation or operations, or is convalescing. . . . This period of temporary total disability contemplates that eventually there will be either complete recovery, or an impaired bodily condition which is stabilized. . . . When the claimant has an operation to correct or improve the impairment resulting from his injury, the healing period continues after recovery from the operation until he reaches maximum recovery. The healing period continues until, after a course of treatment and observation, the injury is discovered to be permanent and that fact is duly established. . . .” Crawley v. Southern Devices, Inc., 31 N.C. App. 284, 288, 229 S.E. 2d 325, 328 (1976).

It is noted that Dr. Waller did not specify the treatment which would relieve pain, and that Dr. McBryde felt that further surgery might reduce pain, but it was the opinion of both physicians that after an adequate healing period the claimant’s condition had stabilized by 25 March 1976. It is further noted that though Dr. Joyce, defendants’ witness, felt something should be considered to relieve claimant’s pain, he didn’t have anything to offer. The Crawley case and the case sub judice are factually similar in that both claimants sustained back injuries, had spinal operations, continued to have pain after stabilization following the healing period, and there was medical opinion that another operation could possibly alleviate pain. It is significant, first, that the improvement was possible with another operation, and, second, that plaintiff rejected another operation. In view of the mere possibility that another (third) operation would improve his condition, the plaintiff was fully justified in his rejection, but having so elected he is not in position to argue convincingly that he has not reached maximum improvement. Nor is maximum recovery deferred by plaintiff’s inability to return to his prior occupation. We find no error in the Commission’s finding that maximum recovery was reached on 25 March 1976, it being supported by competent evidence.

Plaintiff’s argument that the Commission erred in finding that he has a 50°/o permanent partial disability of the back is based on the contention that all the evidence establishes that claimant is unable to perform any common labor, and that the true measure of disability is not the degree of physical impairment but the degree by which ability to earn wages has been diminished. Plaintiff’s argument has some support in the Georgia cases on which he relies, but in this State G.S. 97-31 sets out a strict and exclusive compensation scheme, and G.S. 97-31(23), relating to back injury, provides:

“For the total loss of use of the back, sixty-six and two-thirds percent (66 2/3%) 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.”

Though “disability” signifies an impairment of wage-earning capacity rather than a physical impairment [G.S. 97-2(9)], this signification does not establish impairment of wage-earning capacity as the measure of compensation. Loflin v. Loflin, 13 N.C. App. 574, 186 S.E. 2d 660, cert. den. 281 N.C. 154, 187 S.E. 2d 585 (1972). Under G.S. 97-31 a disability is deemed to continue after the healing period of employee’s injuries and is made compen-sable without regard to the loss of wage-earning power and in lieu of all other compensation. The opinions of the three orthopedist witnesses varied from 35% to 50% permanent partial disability, though the treating physician did testify that there was a 75% physical loss of use of the .back. The Commission’s finding of 50% partial permanent disability of the back is supported by competent evidence, and we find no error.

The order appealed from is

Affirmed.

Judges VAUGHN and Erwin concur.