The opinion
TYSON, Judge,
dissenting.
The Industrial Commission (“Commission”) applied the incorrect legal standard and failed to consider the totality of the evidence. The record does not contain competent evidence to support the Commission’s finding and conclusion that plaintiff cooperated with the rehabilitation efforts of defendants and did not constructively *330 refuse suitable employment. Moses v. Bartholomew, 238 N.C. 714, 718 , 78 S.E.2d 923, 926 (1953) (This Court “merely determines from the proceedings had before the commission whether there was sufficient competent evidence before the commission to support the findings of fact of the full commission.”) I respectfully dissent.
I. Facts
Defendants filed a Form 24, Application to Terminate or Suspend Payment of Compensation, seeking to suspend compensation to plaintiff on the ground that plaintiff was not cooperating with efforts at rehabilitation. The Special Deputy Commissioner was unable to make a determination on the Form 24 from the documentation provided by both parties. Defendants then filed a Form 33, Request for Hearing, to determine whether plaintiff had failed to cooperate with efforts at rehabilitation. Plaintiff filed a Form 33, Request for Hearing, and defendants filed a Form 33R, Response to Request for Hearing, to determine whether plaintiff was totally and permanently disabled. The Deputy Commissioner granted defendants’ request to suspend payment of compensation to plaintiff pursuant to N.C.G.S. § 97-25. The Commission reversed, with one commissioner dissenting, and awarded plaintiff temporary total disability.
II. Burden of Proof
A claimant who asserts entitlement to compensation under N.C.G.S. § 97-29 has the burden of proving that, as a result of the injury arising out of and in the course of employment, he is totally unable to “earn wages which . . . [he] was receiving at the time [of injury] in the same or any other employment.” Burwell v. Winn-Dixie Raleigh, 114 N.C. App. 69, 73 , 441 S.E.2d 145, 149 (1994) (quoting Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 730 , 403 S.E.2d 548, 550 , disc. review denied, 329 N.C. 505 , 407 S.E.2d 553 (1991)) (emphasis added). Defendants admitted liability and compensability by failing to accept or deny the claim within the statutory period after filing a Form 63. See Sims v. Charmes/Arby’s Roast Beef, 142 N.C. App. 154, 159 , 542 S.E.2d 277, 281 (2001).
Once a plaintiff has established a compensable injury, “there is a presumption that disability lasts until the employee returns to work and likewise a presumption that disability ends when the employee returns to work at wages equal to those he was receiving at the time his injury occurred.” Watkins v. Motor Lines, 279 N.C. 132, 137 , 181 S.E.2d 588, 592 (1971) (citing Tucker v. Lowdermilk, 233 N.C. 185 , 63 S.E.2d 109 (1951)).
*331 Once disability is established, “the employer has the burden of producing evidence to rebut the claimant’s evidence.” Burwell, 114 N.C. App. at 73 , 441 S.E.2d at 149 . The employer must “ ‘come forward with evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations.’ ” Id. (quoting Kennedy v. Duke Univ. Med. Center, 101 N.C. App. 24, 33 , 398 S.E.2d 677, 682 (1990) (emphasis in Burwell)). “ ‘There is a presumption that [the employee] will eventually recover and return to work.’ ” Effingham v. Kroger Co., - N.C. App. -, -, 561 S.E.2d 287, 294 (2002) (quoting Leonard T. Jernigan, Jr., North Carolina Workers’ Compensation Law and Practice, § 12-1 at 89 (3d ed.1999)). “[T]he employee must make reasonable efforts to go back to work or obtain other employment.” Id.
“A ‘suitable’ job is one the claimant is capable of performing considering his age, education, physical limitations, vocational skills, and experience.” Burwell, 114 N.C. App. at 73 , 441 S.E.2d at 149 (citing Trans-State Dredging v. Benefits Review Bd., 731 F.2d 199, 201 (4th Cir. 1984)). A plaintiff is “ ‘capable of getting’ a job if ‘there exists a reasonable likelihood . . . that he would be hired if he diligently sought the job.’ ... If the employer produces evidence that there are suitable jobs available which the claimant is capable of getting, the claimant has the burden of producing evidence that either contests the availability of other jobs or his suitability for those jobs, or establishes that he has unsuccessfully sought the employment opportunities located by his employer.” Id. at 73-74, 441 S.E.2d at 149 (quoting Tyndall, 102 N.C. App. at 732 , 403 S.E.2d at 551 ).
In this case, defendants presented substantial competent evidence that several suitable jobs were available within plaintiff’s “locality,” for which plaintiff was qualified and capable to perform. Ronald Alford, a certified rehabilitation counselor and expert in the field of vocational rehabilitation, testified that based on the medical restrictions assigned by Dr. Gwinn, plaintiff’s physical limitations, and plaintiff’s vocational background, there are full-time and part-time jobs available in packaging, assembly, benchwork, and security occupations that plaintiff is capable of performing which would pay plaintiff anywhere from $5.15 to $10.65 per hour. Mr. Alford identified approximately twelve jobs that were available, including Capital Vacuum, Firetrol, Burns Security, John West Auto Service, Manpower, Powertemp, Watchdog Alarm, Clark Paving, and Johnston County Industries. Mr. Alford testified that plaintiff either: (1) had failed to *332 contact the employer, (2) told the employer he did not think that he could work, or (3) had informed the employer that he was in so much pain. Upon this showing, the burden of proof shifted to plaintiff to produce evidence that “either contests the availability of other jobs or his suitability for those jobs, or establishes that he has unsuccessfully sought the employment opportunities located by his employer.” Id.
During his testimony, plaintiff was unable to identify which employers he actually applied with, stating that “I contact who Ron [Alford] asks me to contact.” Plaintiff also testified that he failed to contact the Employment Security Commission, Manpower, or Power Temp Services as recommended by Mr. Alford. Additionally, plaintiff testified before the Deputy Commissioner that he failed to keep an appointment with Johnston County Industries because he could not drive that far. However, plaintiff also testified in an affidavit that he would not attend the Johnston County Industries appointment “because I was fearful of jeopardizing my award for social security disability.”
Dr. Gwinn, a board certified physical medicine rehabilitation specialist and trained to assess disabilities and determine work restrictions, testified that in his opinion plaintiff was employable within light to medium duty work with lifting restrictions of fifteen to twenty pounds, with avoidance of frequent bending and twisting, and with the ability to make postural changes as needed. Similarly, Dr. Lestini, an expert in orthopedic surgery, testified that in his opinion plaintiff was employable within light to medium duty work and that it would be beneficial for plaintiff to “find[ ] some type of work that he can tolerate” to condition his back.
Dr. Cook, who specializes in internal medicine and kidney disease, began treating plaintiff after plaintiff falsely informed him that Dr. Gwinn was no longer in practice. Dr. Cook opined that plaintiff was unable to perform any level of physical activity that would require standing or sitting for more than twenty minutes, bending, squatting, or lifting more than five pounds. In summary, all expert witnesses agreed that plaintiff was capable of performing some level of work with limitations, and the employer showed that jobs were available that met the work restrictions.
The Commission found the following relevant facts:
12. Mr. Alford located approximately twelve (12) job leads for plaintiff who attended many interviews. However, no job was *333 ever officially offered to plaintiff due to his physical condition and restrictions resulting from his 24 October 1996 compensable injury. Furthermore, in no manner were plaintiffs actions regarding these job leads inappropriate and he did not constructively refuse suitable employment.
18. Because no job was ever offered to plaintiff, it cannot' be found that he unjustifiably refused suitable employment.
19. Plaintiff’s pain is constant and severe.
20. Dr. Gwinn’s opinion that plaintiff had “likely” reached maximum medical improvement is not given weight. This is so because it is clear from the evidence that plaintiff continues to experience debilitating pain as the result of his 24 October 1996 injury by accident.
21. The Full Commission gives greater weight to the testimony and opinions of Dr. Cook as opposed to testimony and opinions of Dr. Gwinn and Mr. Alford.
(Emphasis supplied).
The Commission applied the incorrect legal standard in finding that plaintiff did not constructively refuse suitable employment because no job was ever offered. The legal standard is not whether a job was actually offered, but whether suitable jobs are available and whether plaintiff is capable of getting one. Burwell, 114 N.C. App. at 74 , 441 S.E.2d at 149 (1990) (citing Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 732 , 403 S.E.2d 548, 551, disc. review denied, 329 N.C. 505 , 407 S.E.2d 553 (1991)). “It is not necessary . . . that the employer show that some employer has specifically offered plaintiff a job.” Id. (Emphasis supplied). Defendants clearly met their burden, and plaintiff has failed to prove that suitable jobs were unavailable and that he diligently sought the employment opportunities located by his employer.
Plaintiff made false statements not only during his testimony at the hearing, but also lied to Dr. Cook concerning the reason why he was no longer being treated by Dr. Gwinn. The Commission’s reasoning regarding Dr. Gwinn’s testimony that plaintiff had “likely” reached maximum medical improvement is also inconsistent. Dr. Cook opined that plaintiff had reached maximum medical improvement. All expert medical testimony concurred that plaintiff had attained maximum *334 medical improvement. There is insufficient competent evidence to support the Commission’s conclusions. We review de novo the Commission’s conclusions of law. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534 , 491 S.E.2d 678, 681 (1997), disc. review denied, 347 N.C. 671 , 500 S.E.2d 86 (1998).
The Commission fails to disclose the reason it gave greater weight to the testimony and opinions of Dr. Cook. The Commission also failed to resolve the inconsistency between Dr. Lestini’s opinion, which was consistent with that of Dr. Gwinn and that of Dr. Cook. The Commission’s finding implies that it gave greater weight to plaintiff’s self-serving testimony than either the expert testimony of Dr. Cook, Dr. Gwinn, Dr. Lestini, and Mr. Alford. It is well settled that the authority to find facts is vested in the Commission, and like any other trier of facts, the Commission is the sole judge of the credibility and weight of the evidence. Moses, 238 N.C. at 718 , 78 S.E.2d at 926 (citations omitted).
However, the Commission is not free to utterly ignore all competent evidence, properly admitted, nor is the Commission free to not adjudicate between conflicting competent evidence. Our standard of review, although narrow, does not prohibit this Court from requiring the Commission to exercise its statutory function and to base and render its opinions on all competent evidence properly admitted into the record for its consideration.
The majority’s opinion mechanically recites the “standard of review” and feels constrained to defer to the Commission’s findings of fact and conclusions of law, even where the Commission’s decision reflects that it applied the incorrect legal standard, ignored properly admitted expert testimony, and failed to resolve conflicting evidence in the record.
As the Commission committed errors of law, I would reverse the Opinion and Award of the Commission. I respectfully dissent.