Willis v. Reidsville Drapery Plant , 29 N.C. App. 386 ( 1976 )

224 S.E.2d 287 (1976) 29 N.C. App. 386

Juanita WILLIS
v.
REIDSVILLE DRAPERY PLANT, and Liberty Mutual Insurance Company.

No. 7517IC947.

Court of Appeals of North Carolina.

May 5, 1976.

Bethea, Robinson, Moore & Sands by D. Leon Moore, Reidsville, for plaintiff.

Smith, Moore, Smith, Schell & Hunter by Martin N. Erwin and J. Donald Cowan, Jr., Greensboro, for defendants.

MARTIN, Judge.

Defendants contend there is no competent evidence to support the factual finding and conclusion of law that the plaintiff was temporarily totally disabled beyond April 10, 1972, nor to support an award of temporary total disability benefits beyond that date.

"Upon review of an order of the Industrial Commission, this Court does not weigh the evidence, but may only determine whether there is evidence in the record to support the finding made by the Commission. (Citation omitted). If there is any evidence of substance which directly or by reasonable inference tends to support the findings, the Court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary. (Citation omitted)." Russell v. Yarns, Inc., 18 N.C.App. 249, 196 S.E.2d 571 (1973).

In the instant case, there was competent medical evidence that plaintiff was unable to resume her regular duties due to her accident. On 1 November 1974, Dr. Klenner was asked whether, in his opinion, the plaintiff was able to go to work as of that time. He answered as follows: "Yes, sir, I think that she is able to do so on a physical standpoint. I think that she is able to participate in a gainful occupation but I feel that she should not go back to the job that she was injured on. . . ." Further, there was evidence that plaintiff had sought lighter work, but was unable to find it. From this evidence, it may reasonably be inferred that whatever gainful employment plaintiff might engage in would be for a reduced wage, since she was, according to Dr. Klenner, not able to return to the job on which she was injured.

This reduction in wage amounts to a "disability" within the meaning of the Workmen's Compensation Act since the term "disability" means ". . . incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or any other employment." G.S. 97-2(9). ". . . [D]isability refers not to physical infirmity but to a diminished capacity to earn money.'" Burton v. Blum & Son, 270 N.C. 695, 155 S.E.2d 71 (1967).

In the instant case, the evidence was sufficient to support the Industrial Commission's determination that due to the injury by accident, plaintiff was temporarily but totally disabled beyond the date of 27 March 1972 through 31 August 1972 and is due compensation therefor.

Affirmed.

BROCK, C. J., and VAUGHN, J., concur.