Adams v. Metals USA2/15/2005
t 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.
Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993); see also Simmons, 117 N.C. App. at 442-43, 451 S.E.2d at 14. Once the plaintiff establishes disability, there is a presumption that the disability continues until he returns to work at wages equal to those he was receiving at the time of his injury. Simmons, 117 N.C. App. at 443, 451 S.E.2d at 14.
In the instant case, plaintiff testified that he was released from Dr. Kritzer's care with a permanent partial disability rating of eleven percent (11%) as to his back, and a lifting restriction of fifty pounds. At the time plaintiff was released to return to work, defendant-employer had terminated his position. Moreover, defendant-employer never offered plaintiff any light duty work or vocational rehabilitation assistance.
From the evidence presented, it appears plaintiff was still currently disabled as he had not yet regained his pre-injury wage capacity. Radica v. Carolina Mills, 113 N.C. App. 440, 447, 439 S.E.2d 185, 190 (1994) (" n employee's release to return to work is not the equivalent of a finding that the employee is able toearn the same wage earned prior to the injury"). Plaintiff had worked as a truck loader for several years and has few transferable skills and limited education; defendants have not shown suitable employment opportunities are available to plaintiff; and plaintiff testified that he searched for employment but was unsuccessful. See Foster v. U.S. Airways, Inc., 149 N.C. App. 913, 918, 563 S.E.2d 235, 239 (stating an employer may rebut the presumption of ongoing disability "by showing that suitable jobs are available, taking into consideration the employee's physical and vocational limitations, and taking into consideration whether the employee is capable of obtaining a suitable job "), disc. review denied, 356 N.C. 299, 570 S.E.2d 505 (2002). Based on evidence that plaintiff has not yet returned to pre-injury wages, nor has he refused suitable employment, this assignment of error is overruled.
Affirmed.
Judge LEVINSON concurs.
Judge TYSON dissents in a separate opinion.
TYSON, Judge dissenting.
The majority's opinion holds that Dr. Kritzer's testimony sufficiently established causation to affirm the Commission's award. I respectfully dissent.
"Plaintiff has the burden to prove each element of compensability." Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003) (citing Harvey v. Raleigh Police Dep't, 96 N.C. App. 28, 35, 384 S.E.2d 549, 553, disc. rev. denied, 325 N.C. 706, 388 S.E.2d 454 (1989); Taylor v. Twin City Club, 260 N.C. 435, 437, 132 S.E.2d 865, 867 (1963)). " he plaintiff must prove thatthe accident was a causal factor by a 'preponderance of the evidence.'" Holley, 357 N.C. at 232, 581 S.E.2d at 752 (quoting Ballenger v. ITT Grinnell Indus. Piping, Inc., 320 N.C. 155, 158-59, 357 S.E.2d 683, 685 (1987), and citing 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence ยง 41, at 137 (5th ed. 1998)). With injuries involving complex medical questions: "only an expert can give competent opinion evidence as to the cause of the injury." Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). "However, when such expert opinion testimony is based merely upon speculation and conjecture, . . . it is not sufficiently reliable to qualify as competent evidence on issues of medical causatio
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