Coppley v. Ppg Industries

This matter had been appealed by defendant to the Court of Appeals from the Full Commission's 16 July 1998 Opinion and Award affirming the prior decision of Deputy Commissioner George Glenn, II, which awarded temporary total disability benefits to plaintiff.

The primary issue on appeal, as identified by the Court of Appeals, is whether there are sufficient findings to indicate that the plaintiff met her initial burden of proving the existence of the second Hilliard factor — that plaintiff is incapable of earning pre-injury wages in any other employment.

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In view of the foregoing, the Full Commission makes the following:

2. Plaintiff's average weekly wage at the time the alleged incident was $396.14 per week, which works out to about $9.90 per hour based on a forty hour week.

3. Plaintiff was released on 20 August 1995, to return to work with the restrictions as set out in her Functional Capacity Evaluation, which stated: "Because of the repetitive lifting involved in her job as conveyor tuber, I do not feel she will be able to return as the requirements exceed her capability. She will best handle a job that will allow for the frequent changes of position at will with reduced lifting demands — occasionally with a 15 lb. range."

4. Plaintiff was also diagnosed with severe depression, but has improved some in that respect.

5. The Full Commission finds that the plaintiff, given her age, education, experience, training, the area in which she lives, and the physical restrictions of her Functional Capacity Evaluation, will be incapable of finding any other employment in her community at/or greater than her pre-injury wages.

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Based upon the findings of fact, the Full Commission concludes as follows:

2. As a result of the injury by accident plaintiff was temporarily totally disabled from 31 January 1995 through the date of this hearing and continuing until such time as she has returned to work in a position earning the same or greater wages than she was earning at the time of this accident.

3. Plaintiff's average weekly wages at the time of the accident were $396.14. yielding a compensation rate of $264.09.

4. Defendant is obligated to pay all medical expenses incurred or which will be incurred as a result of plaintiff's compensable injury that may cure or give relief or tend to lessen plaintiff's disability.

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Based on the foregoing findings of fact and conclusions of law, the Full Commission enters the following:

2. Defendant shall pay for all medical expenses incurred or to be incurred by plaintiff as a result of her compensable injury when bills for same have been submitted, for so long as such evaluations, treatments and examinations may reasonably be required to effect a cure, give relief and/or lessen plaintiff's period of disability.

3. An attorney's fee of twenty-five (25) percent of the compensation due plaintiff herein is hereby awarded to plaintiff's counsel and shall be paid as follows: twenty-five percent (25%) of the amount due plaintiff shall be deducted and paid directly to plaintiff's attorney.

4. No costs are assessed at this time.

This 22nd day of June 1999.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/_____________ J. HOWARD BUNN, JR. CHAIRMAN

DISSENTING:

S/_____________ RENEE C. RIGGSBEE COMMISSIONER

Note: This Opinion and Award was signed by all three members of the panel prior to the retirement of J. Howard Bunn, Jr.

I respectfully dissent for the reasons stated in my dissent to the majority's earlier Opinion and Award. Plaintiff did not offer evidence on the issue of whether her injury by accident caused a wage loss after 20 August 1995. Of her sixteen years of work experience, plaintiff worked for defendant for only four months. There is no evidence that a reasonable job search was in fact unsuccessful or would be futile, and there is no evidence linking plaintiff's piriformis and left-sided lateral rotator syndrome to an inability to earn wages after 20 August 1995.

I note that, at the time of the evidentiary hearing, plaintiff was fifty-two years of age, not fifty-five as the majority now finds. Her current age is not relevant to issues defined at the evidentiary hearing in 1996.

Because plaintiff has not proved that her injury on 6 January 1995 rendered her disabled after August 1995, I respectfully dissent from the award of continuing disability benefits.

S/_____________ RENEE C. RIGGSBEE COMMISSIONER

I respectfully dissent for the reasons stated in my dissent to the earlier Opinion and Award. Plaintiff did not offer evidence on the issue of whether her injury by accident caused a wage loss after 20 August 1995. Of her sixteen years of work experience, plaintiff worked for defendant for only four months. There is no evidence that a reasonable job search was in fact unsuccessful or would be futile, and there is no evidence linking plaintiff's piriformis and left-sided lateral rotator syndrome to an inability to earn wages after 20 August 1995.

I note that, at the time of the evidentiary hearing, plaintiff was fifty-two years of age, not fifty-five as the Opinion and Award now finds. Her current age is not relevant to issues defined at the evidentiary hearing in 1996.

Because plaintiff has not proved that her injury on 6 January 1995 rendered her disabled after August 1995, I respectfully dissent from the award of continuing disability benefits.

I further dissent because this Opinion and Award was filed after Chairman Bunn was no longer with the Commission. It is the filing date that is relevant in that respect, not the date of signature. More significant, however, is the fact that the dissent was signed and circulated to Chairman Bunn after his initial concurrence, and, prior to his retirement, he did not indicate whether his position remained the same. Under these circumstances, the Commission did not have a majority vote, and another commissioner should have been substituted to review the case. See Estes v. N.C. State Univ., 117 N.C. App. 126,449 S.E.2d 762 (1994).

This Amended Dissent was filed on the day I became aware that the Opinion and Award had been filed.

This the 26th day of October 1999.

S/_____________ RENEE C. RIGGSBEE COMMISSIONER