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Sims v. Charmes/Arby's Roast Beef2/6/2001
sumption of continuing disability as the Form 21. Although this question has never been addressed directly by our courts, a careful reading of G.S. § 97-18(d) and recent case law requires that we decide the issue adversely to plaintiff's contentions.
As a general rule, an employee is entitled to compensation if he is disabled as a result of an injury by accident occurring in the course of employment. Rhinehart v. Market, 271 N.C. 586, 157 S.E.2d 1 (1967). The employee has the burden of proving a disability as a result of a work-related injury. One method for establishing disability is the use of the Industrial Commission Form 21; written agreements between employers and employees using Form 21 and approved by the Commission qualify as awards of the Commission and entitle employees to a presumption of disability. Kisiah v. W.R. Kisiah Plumbing, Inc., 124 N.C. App. 72, 476 S.E.2d 434 (1996).
The General Assembly has also provided more direct methods for employers to compensate injured employees without admitting liability. G.S. § 97-18(b) permits an employer to admit that the injury suffered by the employee is compensable, that the employer is liable for compensation, and to notify the Commission of such action by use of the Form 60, "Employer's Admission of Employee's Right to Compensation Pursuant to N.C. Gen. Stat. § 97-18(b)." By contrast, G.S. § 97-18(d) provides the employer with the option of making payments to an injured employee for a period of 90 days without admitting the compensability of or the liability for the injury. After the 90-day period, however, if the employer does not contest liability or compensability, "it waives its right to do so and the entitlement to compensation becomes an award of the Commission pursuant to G.S. § 97-82(b)." Higgins v. Michael Powell Builders, 132 N.C. App. 720, 724, 515 S.E.2d 17, 20 (1999).
In Olivares-Juarez v. Showell Farms, ___ N.C. App. ___, 532 S.E.2d 198 (2000), the employer made direct payments to the injured employee pursuant to G.S. § 97-18(d), using the Industrial Commission Form 63, Payment of Compensation Without Prejudice. The employer, however, made these payments beyond the 90-day statutory period, from 14 August 1995 until 2 January 1996. Thus, this Court held, according to the statute, the employer had waived its right to contest the compensability of or its liability for the employee's injury. The status of the employer who pays compensation without prejudice beyond the statutory period is therefore the same as the employer who files Form 60 pursuant to G.S. § 97-18(b). That is, in both circumstances the employers will be deemed to have admitted liability and compensability. In Olivares-Juarez, the Court held that because a Form 21 agreement was not approved by the Commission, "a presumption of disability in favor of plaintiff did not arise." ___ N.C. App. at ___, 532 S.E.2d at 202 . The employer in Olivares-Juarez, therefore, was held to have admitted compensability and liability, but not the employee's disability. Accordingly, admitting compensability and liability, whether through notification of the Commission by the use of a Form 60 or through paying benefits beyond the statutory period provided for in G.S. § 97-18(d), does not create a presumption of continuing disability as does a Form 21 agreement entered into between the employer and the employee.
In the present case, defendants filed a Form 60 admitting compensability and liability for plaintiff's injury. The Commission, in its order filed 7 October 1998, determined that use of the Form 60 did not entitle plaintiff to a presumption of continuing temporary disability as would have been the case had the parties filed the Form 21 agreement. Based on
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