Baxter v. Danny Nicholson, Inc. ( 2007 )

The undersigned respectfully dissents from the Opinion and Award of the majority awarding plaintiff ongoing disability benefits. Plaintiff has not shown that he is disabled within the meaning of the Workers' Compensation Act. The credible medical evidence of record shows that plaintiff is capable of returning to some employment. Plaintiff's testimony before the Deputy Commissioner that he unsuccessfully sought suitable employment remains wholly unsupported by any other evidence. In fact, defendant points to plaintiff's sworn discovery responses, which directly contradict plaintiff's testimony. The majority finds that plaintiff has proven that he has been unable to find suitable employment after making reasonable efforts in accordance with Russell v. Lowe'sProduct Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993). This is clearly in contradiction of the credible evidence of record.

I further disagree with the majority's finding that defendant's conduct was unreasonable and constituted stubborn unfounded litigiousness, justifying an award of attorney's fees. After plaintiff attempted to return to work, neither plaintiff nor counsel requested a return visit to his doctor. In fact, plaintiff continued to treat with his family physician, Dr. Parthenia Richardson. Plaintiff's assertions that he was unable to complete a Form 28U because defendant would not authorize a follow up medical appointment are not credible. Further, I believe that defendant had good grounds to litigate this claim as plaintiff failed to meet his burden of proving disability.

Accordingly, I dissent

This the ___ day of February, 2007.

S/_________________________ BUCK LATTIMORE CHAIRMAN