Cockerham v. Guardian Care of Elkin

The Full Commission's Opinion and Award of October 26, 1994 ordered payment of continuing temporary total disability benefits, until the plaintiff was capable of earning wages based upon the record before the Deputy Commissioner consisting of lay testimony taken in Dobson on July 6, 1992, and closing on November 13, 1992 upon the receipt of Dr. Adams' deposition.

Prior to the Commission's Order of July 18, 1995 the parties disputed whether plaintiff had, in fact, truly returned to work, and the Commission ordered that payment be resumed unless evidence substantiating an actual return to work was submitted. Defendants have submitted an affidavit that plaintiff worked a full day on October 2, 1992 at a job within the restrictions set by Dr. Adams. Once a plaintiff returns to some gainful employment, the presumption of disability is rebutted. Tucker v. Lowdermilk,233 N.C. 185, 189, 63 S.E.2d 109 (1951). However, the parties dispute whether this was a failed work attempt.

Upon review of the parties' motions, contentions and the affidavit submitted by the defendant, it appears that the defendant paid temporary total disability through October 2, 1992 when plaintiff attempted to return to work. The parties dispute whether plaintiff had regained her ability to earn wages as of that date.

Consequently, IT IS ORDERED that the matter is placed upon the October hearing docket for Winston-Salem for expedited hearing before the deputy commissioner assigned; the Commission's Order of July 18, 1995 to pay temporary total benefits pending further orders of the Commission is rescinded; and, that otherwise the parties' motions are DENIED, without prejudice to their right to raise the same matters and things before the deputy commissioner.

Further, if the defendants admit liability for some period of permanent partial disability, any payments made pending the hearing will be credited against any eventual award of benefits.

FOR THE FULL COMMISSION

S/ _______________________ COY M. VANCE COMMISSIONER

CONCURRING:

S/ ____________________ J. RANDOLPH WARD COMMISSIONER

CMV/cnp/mj 8/23/95