On discretionary review, G.S. 7A-31, from the decision of the Court of Appeals,
Branch, Chief Justice. Justice Exum concurring. Justice Meyer dissenting. Justice Copeland joins in this dissenting opinion.
Plaintiff assigns error to the finding of fact of the Deputy Commissioner, affirmed by the full Industrial Commission and the Court of Appeals, to the effect that plaintiff "does not have any permanent disability as a result of the injury giving rise hereto." He argues that the determination of whether a disability exists is
a conclusion of law and that said conclusion must be based upon findings of fact supported by competent evidence. We agree.
The necessary factual basis for a determination of disability is set out in G.S. 97-2(9).
Disability. -- 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.
We are of the opinion that in order to support a conclusion of disability, the Commission must find: (1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual's incapacity to earn was caused by plaintiff's injury. See Watkins v. Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971). In workers' compensation cases, a claimant ordinarily has the burden of proving both the existence of his disability and its degree. Hall v. Chevrolet Co., 263 N.C. 569, 575, 139 S.E.2d 857, 861 (1965).
In passing upon issues of fact, the Industrial Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. The Commission may accept or reject the testimony of a witness solely on the basis of whether it believes the witness or not. Anderson v. Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951). The findings of the Industrial Commission are conclusive on appeal when supported by competent evidence even though there be evidence to support a contrary finding. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Conner v. Rubber Co., 244 N.C. 516, 94 S.E.2d 486 (1956). However, the Commission's legal conclusions are reviewable by the appellate courts. Jackson v. Highway Commission, 272 N.C. 697, 158 S.E.2d 865 (1968). It is equally well settled that when the findings are insufficient to determine the rights of the parties, the court may remand to the Industrial Commission for additional findings. Byers v. Highway Comm., 275 N.C. 229, 166 S.E.2d 649 (1969); Brice v. Salvage Co., 249 N.C. 74, 105 S.E.2d 439 (1958).
In instant case it was plaintiff's burden to persuade the Commission not only that he had obtained no other employment but that he was unable to obtain other employment.
A plaintiff must adduce, in cases where he is physically able to work, evidence that he is unsuited for employment due to characteristics peculiar to him. Little v. Food Service, 295 N.C. 527, 246 S.E.2d 743 (1978).
In Little plaintiff suffered an injury to her spinal cord which according to medical testimony rendered her incapable of returning to her former employment as a laborer. Plaintiff, a fifty-year-old obese woman with an eighth grade education, was prevented from offering her own testimony as to total disability by the hearing officer's statement that such testimony was unnecessary. Noting that "if other pre-existing conditions such as an employee's age, education and work experience are such that an injury causes him a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the incapacity which he or she suffers, and not for the degree of disability which would be suffered by someone with superior education or work experience or who is younger or in better health," the court remanded for the purpose of affording the plaintiff an opportunity to present evidence relevant to her capacity to work and earn wages. Id. at 532, 246 S.E.2d at 746.
Instant case differs from Little in that the record does not disclose that the Commission limited plaintiff in his testimony concerning his capacity to work and earn wages. Here the uncontradicted medical testimony establishes that plaintiff was physically capable of working in employment free from wood dust, paints and lacquer fumes and glue fumes. In this connection plaintiff testified that he was unable to obtain other employment without a diminution in wages because of his age, lack of education and inexperience. He also testified that he had "not gone out to seek any other jobs." This conflicting testimony raised an issue of fact requiring a finding by the Commission. In making that finding, the Commission was free to accept or reject all or any part of plaintiff's testimony. Anderson v. Motor Co., supra.
The Industrial Commission failed to make specific findings of fact as to the crucial questions necessary to support a conclusion as to whether plaintiff had suffered any disability as defined by G.S. 97-2(9). Guest v. Iron and Metal Co., 241 N.C. 448, 85 S.E.2d 596 (1955). This Court is therefore unable to determine whether adequate basis exists, either in fact or law, for the Commission's
award. This cause is remanded to the Court of Appeals with direction that it be remanded to the Industrial Commission for ...