employee has option of choosing the most favorable remedy of those offered in sections 97-29, 97-30, or 97-31
How later courts described this case
- employee has option of choosing the most favorable remedy of those offered in sections 97-29, 97-30, or 97-31
- presumption of total disability arising from a Form 21 agreement may be rebutted by evidence that employee is capable of earning some wages, even if wages are less than those earned at time of injury
- noting that approval of a new physician is within the Commission’s discretion
- Commission may reject all or part of any witness’s testimony
Written by the judges who cited it.
The opinion
Judge Walker
concurring.
I concur with the majority opinion in this case and agree that the case must be remanded to the Industrial Commission (the Commission) to determine whether plaintiff was entitled to either permanent total disability, pursuant to section 97-29, or partial disability, pursuant to section 97-30. I also agree that the Commission improperly placed the burden of establishing disability on the plaintiff because it failed to apply the presumption which arose upon the approval of the executed Form 21 when it concluded that plaintiff failed to prove that she was unable to work or obtain any employment.
It is well established that upon the signing of a Form 21 agreement for temporary total disability benefits, the plaintiff is entitled to a presumption of continuing total disability. Dalton v. Anvil Knitwear, 119 N.C. App. 275, 283-4 , 458 S.E.2d 251, 257 , disc. review denied, 341 N.C. 647 , 462 S.E.2d 507 (1995). Although the plaintiff in this case did not argue that she was entitled to this presumption, numerous decisions by our Court have held that where there has been a previous determination that the employee is disabled as evidenced by the approval of a Form 21, the employee is entitled to a presump *209 tion of continuing disability. Watkins v. Motor Lines, 279 N.C. 132, 137 , 181 S.E.2d 588, 592 (1971); But see Russell v. Lowes Product Distribution, 108 N.C. App. 762 , 425 S.E.2d 454 (1993). Thus, where the parties entered into a Form 21, it was error for the Commission not to apply a presumption of continuing total disability irrespective of whether this issue was raised by the plaintiff.
I write separately to elucidate what is required by the employer to rebut the presumption of total disability which arises upon the approval of a Form 21. The presumption of total disability may be rebutted not only by a showing of the capacity to earn the same wages, but also by a showing of the capacity to earn lesser wages.
For example, the presumption of total disability may be rebutted by evidence that the employee is capable of earning some wages, albeit wages less than the wages earned at the time of injury. Specifically, the employer must produce evidence that:
(1) suitable jobs are available for the employee;
(2) that the employee is capable of getting said job taking into account the employee’s physical and vocational limitations;
(3) and that the job would enable employee to earn some wages.
In cases where the employer produces such evidence, the burden shifts back to the employee to show either that jobs are not available, they are not suitable considering his/her condition, or he/she has unsuccessfully sought employment opportunities by the employer. Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 732 , 403 S.E.2d 548, 551 , cert. denied, 329 N.C. 505 , 407 S.E.2d 553 (1991). Where the employee fails to meet this burden, the plaintiff continues to be disabled but the disability changes from a total disability to a partial disability under section 97-30, due to impaired earning capacity. See Kennedy v. Duke Univ. Med. Center, 101 N.C. App. 24 , 398 S.E.2d 677 (1990).
In addition, an employer may rebut the presumption of total disability by producing evidence that the employee is capable of returning to work at wages equal to those the employee was receiving at the time of injury in order to show that the employee is no longer disabled. Radica v. Carolina Mills, 113 N.C. App. 440, 447 , 439 S.E.2d 185, 190 (1994). Upon this showing, the burden then shifts to the employee to show that he/she is disabled as defined by the Workers’ Compensation Act.
*210 At any point, however, the employer may show that the employee has unjustifiably “refuse [d] employment procured for [her] suitable to [her] capacity.” N.C. Gen. Stat. § 97-32 (1991). If this evidence is accepted by the Commission, the employee is precluded from receiving benefits pursuant to sections 97-29 or 97-30. McCoy v. Oxford Janitorial Service Co., 122 N.C. App. 730, 733, 471 S.E.2d 662, 664-65 (1996).