Appeal by plaintiff from opinion and award entered 30 December 1996 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 November 1997.
The opinion of the court was delivered by: Timmons-goodson, Judge.
Plaintiff David Earl Snead appeals from an opinion and award of the North Carolina Industrial Commission terminating his temporary total disability benefits. Plaintiff suffered an admittedly compensable injury on 30 October 1992, when he strained his back during and in the course of his employment with defendant Carolina Pre-Cast Concrete, Inc. (hereinafter, "defendant-employer"). Following the incident, plaintiff was diagnosed and treated for lower back strain at the emergency room of Betsy Johnson Memorial Hospital. Plaintiff was, thereafter, referred to Dunn Orthopaedics, P.A., for follow-up treatment.
Plaintiff received treatment at Dunn Orthopaedics from 5 November until 28 December 1992, when he was released to return to work without any restrictions. On 29 December 1992, plaintiff presented his authorization to return to work to Karen Melott, defendant-employer's office manager. Ms. Melott told plaintiff to return to work on 4 January 1993, because the plant was on temporary shut down. Plaintiff returned to work on 4 January 1993 and was advised that due to a work slow down, he and his direct supervisor were laid off.
After being laid off, plaintiff worked as a self-employed painter for two to three weeks and earned approximately $300 total. In February 1993, plaintiff became employed with Heritage Concrete as a truck driver. Medical documents tend to show that plaintiff worked as a truck driver until October 1993. Plaintiff attempted to return to work as a manual laborer in construction, but as of 30 March 1994, he had been out of work for seven weeks. Plaintiff, again, sought treatment for his back problems on 16 March 1994.
Plaintiff was seen by Dr. John Mann, who referred him to the Orthopaedic Clinic at the University of North Carolina Hospitals in Chapel Hill. Dr. Mann was of the opinion that the probability of plaintiff returning to manual labor was low. The doctor recommended that plaintiff "contact his caseworkers and investigate the possibilities of vocational rehab where he can train into a job of a more sedentary nature." Dr. Mann was concerned that if plaintiff could regain a full functioning level, he would have a relapse if he returned to a job driving trucks or loading. Plaintiff's condition has continued to worsen, but he has been unable to return to Chapel Hill because his Medicaid benefits were cut off when his wife became employed. Defendant-employer has been unable to provide a light duty or sedentary job for plaintiff and has provided no vocational rehabilitation services for plaintiff since he was laid off.
Following his injury, plaintiff was paid compensation for disability pursuant to an Industrial Commission Form 21. Although the parties signed the I.C. Form 21 on 17 November 1992, that form was not submitted to the Industrial Commission until 8 January 1993. On 19 March 1993, however, defendant-employer filed an I.C. Form 28B, which notified plaintiff that his workers' compensation benefits were to be discontinued. Plaintiff then filed an I.C. Form 33, requesting that his claim be assigned for hearing. Defendant-employer filed a response to plaintiff's request on 1 July 1994.
On 23 September 1994, plaintiff filed a motion for payment of past due workers' compensation benefits, a motion for ten percent penalty pursuant to North Carolina General Statutes section 97-18, and a motion for attorney's fees pursuant to North Carolina General Statutes section 97-88.1. Defendant-employer and Maryland Insurance Group, defendant- employer's insurance carrier, filed a response to plaintiff's motions on 5 December 1994.
This matter was heard by Deputy Commissioner Laura Kranifeld Mavretic on 2 September 1994. By opinion and award filed 1 August 1995, Deputy Commissioner Mavretic allowed some of plaintiff's benefits but denied other benefits. Plaintiff appealed to the Full Commission, and by opinion and award filed 30 December 1996, the Full Commission adopted, with minor modifications, the findings of fact and Conclusions of law made by Deputy Commissioner Mavretic. Plaintiff, again, appeals.
Plaintiff raises five arguments on appeal. We paraphrase these arguments as follows:
(1) The Commission erred in allowing defendant- employer to terminate plaintiff's temporary total disability benefits, since defendant produced no evidence that plaintiff's condition has improved or that he has successfully returned to work.
(2) The Commission erred in assigning plaintiff the burden of proving that his current back problems were caused by the 30 October 1992 injury, because the approved Form 21 agreement satisfied plaintiff's burden on the issue of causation.
(3) The Commission erred in finding that plaintiff returned to work, when there was no evidence to support a finding or Conclusion that plaintiff returned to work for defendant-employer or that plaintiff was able to successfully return to work for any other employer.
(4) The Commission erred in finding that there was no causal relationship between the compensable injury and plaintiff's inability to work, as such a finding was not supported by the evidence.
(5) The Commission erred in finding that plaintiff's job with Heritage Concrete was suitable to his capacity, that he was actually able to obtain such a job, and that he had regained his wage earning capacity, ...