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Phillips v. Hertz Corp.10/18/2005
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Id. at 595, 290 S.E.2d at 683. Under this test, " he burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment." Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993).
Plaintiff may meet his burden of proving disability through one of the following methods:
(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of pre-existing conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.
Id. (internal citations omitted).
In this case, there is no dispute that Phillips cannot return to his pre-injury employment. Defendants have argued instead that the light duty positions establish that Phillips was not disabled. As discussed above, the Commission's findings of fact otherwise, pursuant to Peoples and Saums, are supported by competent evidence and, therefore, are binding on appeal. After, however, finding that the light duty positions did not accurately reflect Phillips' wage-earning capacity, the Commission did not make any findings offact regarding Phillips' actual wage earning capacity. As a result, the opinion and award contains no findings of fact to support the conclusion that Phillips was totally disabled from the date of the injury on 8 June 2000 through the termination of his employment on 12 September 2001. See Peoples, 316 N.C. at 440, 342 S.E.2d at 807 (holding that although the defendant's offer of employment was irrelevant, "an issue remains as to whether the Industrial Commission erred in awarding plaintiff compensation for total and permanent disability").
With respect to the period following Phillips' termination, the Full Commission adopted, with only slight modification, the findings of fact of the Deputy Commissioner:
20. During the period of time following plaintiff's termination from defendant- employer he was released to return to work within his restrictions but admittedly did not engage in any active job search as he was "waiting for litigation that was pending to be resolved." Plaintiff did earn some wages, which he estimated to be approximately $3,000.00 for interior design work. Plaintiff did not engage in further job search other than his interior design work due to the fact that his litigation was pending, that he had limited transportation and that his apartment was not "bus-friendly."
27. Following plaintiff's termination he was released to return to work and did not engage in any active job search because it would not have made sense to do so in his opinion because he was waiting for the results of his workers' compensation litigation.
Although the Full Commission then reached the opposite conclusion from the Deputy Commissioner regarding disability, it made no additional findings of fact to support its conclusion that Phillips continued to be totally disabled after the termination of his employment.
Thus, the sole findings of fact relating to the extent of Phillips' disability do not establish that Phillips was totally disabled. Those findings _ not challenged by Phillips on appeal _ also cannot, standing alone, support
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