An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1358

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

KERRY RAY HARRISON,

Employee-Plaintiff,

v. From the North Carolina 

Industrial Commission

I.C. No. 167921

GEMMA POWER SYSTEMS, LLC,

Employer,

and

TRAVELERS INSURANCE COMPANY,

Carrier,

Defendants.

Appeal by plaintiff from opinion and award entered 16 

September 2013 by the North Carolina Industrial Commission. 

Heard in the Court of Appeals 10 April 2014.

Poisson, Poisson & Bower, PLLC, by E. Stewart Poisson and 

Fred D. Poisson, Jr., for plaintiff-appellant.

Jessica E. Lyles for defendants-appellees.

HUNTER, JR., Robert N., Judge.

Kerry Ray Harrison (“Plaintiff”) appeals from an opinion 

and award of the North Carolina Industrial Commission denying 
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his claim for indemnity benefits and concluding that his claim 

for additional medical benefits is time-barred by N.C. Gen. 

Stat. § 97-25.1 (2013). Plaintiff contends that the Industrial 

Commission’s findings of fact are inadequate and that the record 

evidence entitles him to disability (See N.C. Gen. Stat. §§ 97-

29, -30 (2013)) and/or permanent impairment (See N.C. Gen. Stat. 

§ 97-31 (2013)) indemnity benefits. Plaintiff further contends 

that his right to future indemnity payments undermines the 

Industrial Commission’s statute of limitations analysis. For 

the following reasons, we hold that Plaintiff’s right to 

additional medical compensation is time-barred, but agree that 

the Industrial Commission’s findings and conclusions concerning 

Plaintiff’s right to disability and permanent impairment 

benefits are inadequate.

I. Factual & Procedural History

Plaintiff began working for Gemma Power Systems, LLC 

(“Defendant”)1 in 2000 as a pipefitter. In this role, Plaintiff 

was required to perform manual labor that often required him to 

lift between 40 and 100 pounds, as well as perform overhead 

work. 

 

1 Defendant’s actions described herein also include the actions 

of Defendant’s insurance carrier and co-defendant, Travelers 

Insurance Company.
-3-

On 2 March 2001, Plaintiff suffered a compensable injury 

while working for Defendant when he was struck on the head by a 

falling pipe fixture. Plaintiff was wearing a hard hat at the 

time. The impact knocked Plaintiff to the ground, leaving him 

dazed and with a headache.

A few days after the accident, Plaintiff told Defendant 

that he was having severe neck pain and requested medical 

attention. Defendant sent Plaintiff to Sandhills Medical Center 

for evaluation and treatment. A CT scan showed no evidence of 

fracture and Plaintiff was referred to a chiropractor for 

continuing treatment. Plaintiff received chiropractic treatment 

from 5 March 2001 until 24 May 2001. 

While being treated by the chiropractor, Plaintiff returned 

to work and performed light duty tasks until he was laid off by 

Defendant on 22 April 2001. After being laid off, Defendant 

referred Plaintiff to Dr. Dixon Gerber (“Dr. Gerber”), an 

orthopedic surgeon. Dr. Gerber evaluated Plaintiff on 27 June 

2001 and opined in his post-evaluation report as follows:

I feel this gentleman sustained an acute 

cervical injury back on 03-02-01. At the 

presenttime [sic] I think he is at maximum 

medical improvement and has no permanent 

partial disability. I think this patient 

could return to full unrestricted duties 

commencing 07-02-01. At this time, I 

foresee no further medical treatment
-4-

necessary.

After seeing Dr. Gerber, Plaintiff filed a Form 18 on 6 July 

2001 with the Industrial Commission documenting and noticing the 

2 March 2001 injury. 

Subsequently, Defendant rehired Plaintiff as a pipefitter. 

However, after several instances of Plaintiff missing work and 

arriving late for work, Defendant terminated Plaintiff. From

July 2001 until February 2003, Plaintiff worked for a number of 

employers in the construction industry as a pipefitter. 

Thereafter, Plaintiff worked as a laborer, security guard, 

theater worker, electrician’s helper, and as a loader. In May 

2009, Plaintiff stopped working altogether to attend community 

college, but later obtained a part-time position at the library 

as a computer lab assistant. Plaintiff testified that during 

periods of unemployment, he collected unemployment benefits. 

Notwithstanding Dr. Gerber’s assessment in July 2001, 

Plaintiff continued to report problems with his neck in the 

years that followed. On 27 June 2002, Plaintiff sought medical 

treatment on his own and had an MRI performed at Southeastern 

Regional Medical Center that revealed a “mild broad base disc 

bulge at C6–7.” Plaintiff was referred to a neurosurgeon. At 

Defendant’s request, Plaintiff had an independent medical 
-5-

evaluation performed by Dr. Robert Lacin (“Dr. Lacin”) at 

Goldsboro Neurological Surgery. In his medical report dated 2 

October 2002, Dr. Lacin opined as follows:

In regards to the origin of these 

complaints, with a temporal relationship to 

the accident, in absence of any other 

problems with his neck, I certainly have no 

doubt that the patient’s symptoms are 

related to this incident of March 2, 2001. 

However, whether or not they are structural, 

soft tissue related and/or 

psychogenic/somatoform, at the present time 

I cannot tell with certainty.

Dr. Lacin recommended that Plaintiff see an interventional pain 

management specialist to perform diagnostic joint blocks, and, 

if necessary, a cervical discogram. 

Following a motion by Plaintiff to authorize additional 

neck treatment, the Industrial Commission filed an order on 7 

July 2003 compelling Defendant to “provide for plaintiff to 

undergo the diagnostic testing recommended by Dr. Lacin with a 

specialist of plaintiff’s choice.” Subsequently, from December 

2003 to November 2006, Plaintiff was seen by Dr. T. Hemanth Rao 

(“Dr. Rao”) at Neurology Consultants of the Carolinas, and later 

by Dr. Paul McDonald (“Dr. McDonald”). Plaintiff’s continued 

neck pain and headaches were documented at these visits and Dr. 

McDonald referred Plaintiff for a surgical opinion. 
-6-

On 11 December 2008, Plaintiff filed a Form 33 with the 

Industrial Commission wherein Plaintiff alleged that Defendant 

refused to authorize the medical treatment recommended by Dr. 

McDonald. On 22 December 2008, the Industrial Commission 

ordered another evaluation by Dr. Rao. However, as a result of 

a mix-up at the doctor’s office, Plaintiff was seen again by Dr. 

McDonald. Dr. McDonald gave Plaintiff work restrictions of no 

lifting greater than twenty pounds and no reaching overhead, and 

again referred Plaintiff for a surgical opinion. 

On 27 April 2009, Dr. Alfred Rhyne (“Dr. Rhyne”), board 

certified in orthopedics, performed an independent medical 

evaluation of Plaintiff. Dr. Rhyne opined that Plaintiff had 

“chronic C7 radioculpathy and a history of disk protrusion at 

C6–7” and recommended that Plaintiff get an MRI of his spine. 

Defendant, however, refused to authorize the MRI. Nevertheless, 

Plaintiff sought out and subsequently received an MRI at the 

Veterans Affairs Medical Center in Fayetteville, which revealed 

“[m]ultilevel cervical spondylosis . . . in the lower cervical 

spine” that was “most prominent at C5 and C6.” Thereafter, 

Plaintiff requested that Defendant pay for Dr. Rhyne to read the 

MRI and render an opinion for further treatment. Defendant 

refused this request. 
-7-

On 25 January 2012, Plaintiff filed another Form 33 request

with the Industrial Commission alleging that Defendant “failed 

to authorize plaintiff’s request for further treatment with Dr. 

Rhyne” and raised the issue of Plaintiff’s right to indemnity 

benefits as a result of the 2 March 2001 injury. On 6 February 

2012, Defendant filed a Form 33R contending that Plaintiff’s 

claim was “medical only” and barred by the statute of 

limitations. Record evidence shows that Plaintiff has never 

received indemnity benefits from Defendant, but did receive 

payments for authorized medical expenses until 18 May 2009, the 

date of Defendant’s last recorded payment. 

On 7 February 2013, the Deputy Commissioner filed an 

opinion and award concluding that Plaintiff’s claim for 

additional medical compensation was barred by the statute of 

limitations and denied Plaintiff’s request for indemnity 

benefits. Plaintiff appealed to the Full Commission. On 16 

September 2013, the Full Commission affirmed the opinion and 

award, concluding that Plaintiff’s claim for additional medical 

compensation was time-barred pursuant to N.C. Gen. Stat. § 97-

25.1 and that Plaintiff failed to establish the existence of a 

disability pursuant to Hilliard v. Apex Cabinet Co., 305 N.C. 

593, 290 S.E.2d 682 (1982), and Russell v. Lowes Prod. 
-8-

Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993). 

Plaintiff filed timely notice of appeal to this Court on 25 

September 2013. 

II. Jurisdiction & Standard of Review

Plaintiff’s appeal from the opinion and award of the Full 

Commission lies of right to this Court pursuant to N.C. Gen. 

Stat. § 7A-29(a) (2013). Accord N.C. Gen. Stat. § 97-86 (2013).

Our review of an opinion and award of the Industrial 

Commission “is limited to consideration of whether competent 

evidence supports the Commission’s findings of fact and whether 

the findings support the Commission’s conclusions of law. This 

‘court’s duty goes no further than to determine whether the 

record contains any evidence tending to support the finding.’” 

Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 

669 S.E.2d 582, 584 (2008) (citation omitted) (quoting Anderson 

v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 

(1965)). “The Commission is the sole judge of the credibility 

of the witnesses and the weight to be given their testimony.” 

Anderson, 265 N.C. at 433–34, 144 S.E.2d at 274.

However, “[c]onclusions of law by the Industrial Commission 

are reviewable de novo by this Court.” Bond v. Foster Masonry, 

Inc., 139 N.C. App. 123, 127, 532 S.E.2d 583, 585 (2000). 
-9-

“Under a de novo review, the court considers the matter anew and 

freely substitutes its own judgment for that of the lower 

tribunal.” Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 

334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks and 

citation omitted).

III. Analysis

Plaintiff’s appeal raises three questions for our review: 

(1) whether Plaintiff’s claim for additional medical 

compensation from Defendant is time-barred by N.C. Gen. Stat. § 

97-25.1; (2) whether the Full Commission erred in denying 

temporary total and temporary partial disability benefits to 

Plaintiff; and (3) whether the trial court erred in denying 

permanent partial impairment benefits to Plaintiff. We address 

each in turn.

A. Medical Compensation Benefits

Plaintiff contends that the Full Commission erred in 

denying him medical compensation benefits for medical expenses 

incurred after 18 May 2009. We disagree.

In its opinion and award, the Full Commission entered the 

following pertinent findings of fact:

26. Defendant’s last payment of medical 

compensation in this case was a payment of 

medical benefits made on 18 May 2009.
-10-

27. Subsequent to that 18 May 2009 payment, 

the next document plaintiff filed with the 

Commission requesting the provision of 

medical treatment was a Form 33 submitted on 

25 January 2012, more than two years 

following the last payment of medical 

benefits.

Applicable here, N.C. Gen. Stat. § 97-25.1 provides, in part:

The right to medical compensation shall 

terminate two years after the employer’s 

last payment of medical or indemnity 

compensation unless, prior to the expiration 

of this period, either: (i) the employee 

files with the Commission an application for 

additional medical compensation which is 

thereafter approved by the Commission, or 

(ii) the Commission on its own motion orders 

additional medical compensation.

See also Busque v. Mid-Am. Apartment Communities, 209 N.C. App. 

696, 707, 707 S.E.2d 692, 700 (2011) (applying the two-year 

statute of limitations in a straight-forward manner and 

concluding that the plaintiff’s right to medical compensation 

had terminated). Accordingly, based on its findings of fact, 

its reading of N.C. Gen. Stat. § 97-25.1, and this Court’s 

decision in Busque, the Full Commission concluded that Plaintiff 

was not entitled to medical compensation benefits after 18 May 

2009. 

On appeal, Plaintiff does not challenge the evidentiary 

support for Finding of Fact 26 or 27. Rather, Plaintiff argues 

that “the last payment of compensation in the claim has not yet 
-11-

taken place” because “Plaintiff is still owed payment for 

temporary total disability and/or permanent partial impairment.” 

Stated differently, Plaintiff argues that the two-year statute 

of limitations period found in N.C. Gen. Stat. § 97-25.1 has not 

yet begun and will not begin until Plaintiff receives a payment 

from Defendant for indemnity benefits. Plaintiff’s argument on 

this point is misguided for several reasons. First, Plaintiff’s 

argument ignores the plain language of the statute. “The right 

to medical compensation shall terminate two years after the 

employer’s last payment of medical or indemnity

compensation . . . .” N.C. Gen. Stat. § 97-25.1 (emphasis 

added). In context, the word “last” does not refer to a 

hypothetical future payment that Plaintiff may be entitled to 

receive after presenting a claim to the Industrial Commission. 

On its face, the “last” payment refers to the most recent 

payment of medical or indemnity benefits that has actually been 

paid. Second, Plaintiff’s argument assumes the certainty of a 

future indemnity payment before the right to such payment has 

been decided by the Industrial Commission. Third, accepting 

Plaintiff’s interpretation of the statute would allow claimants 

seeking additional medical compensation to obviate the statute 

of limitations in any case by asserting a valid claim for 
-12-

indemnity benefits alongside a claim for additional medical 

compensation. Such an expansive interpretation ignores the

clear intent of our legislature to limit claims for additional 

medical compensation to a specified time period. Accordingly, 

because the last payment of medical compensation made by 

Defendant was more than two years prior to Plaintiff’s current 

Form 33 filing, we hold that Plaintiff’s right to additional 

medical compensation is time-barred pursuant to N.C. Gen. Stat. 

§ 97-25.1.

B. Disability Benefits

The second issue raised by Plaintiff’s appeal is whether 

the Full Commission erred in denying Plaintiff temporary total 

and temporary partial disability benefits under N.C. Gen. Stat. 

§ 97-29 and § 97-30.

In its opinion and award, the Full Commission entered the 

following conclusion of law:

5. Regarding plaintiff’s entitlement to 

temporary total or temporary partial 

disability benefits, the burden of proving 

compensable disability is with 

plaintiff. . . . Plaintiff was released to 

return to work at regular duty as of 2 July 

2001. Plaintiff returned to work at regular 

duty for multiple employers subsequent to 

that date and also received unemployment 

benefits when he was not working. Plaintiff 

has failed to meet his burden of proving 

disability . . . and therefore plaintiff is 
-13-

not entitled to temporary partial or 

temporary total disability 

compensation. . . . Plaintiff has failed to 

meet his burden of proving the existence and 

extent of disability that was caused by the 

2 March 2001 injury.

Plaintiff contends that the Full Commission’s findings of fact 

are inadequate to support this conclusion and requests a remand 

for additional fact finding.

In order to recover indemnity benefits pursuant to N.C. 

Gen. Stat. § 97-29 (total incapacity) or N.C. Gen. Stat. § 97-30 

(partial incapacity), the burden of proof is on the claimant to 

demonstrate “both the existence of his disability and its 

degree.” Hilliard, 305 N.C. at 595, 290 S.E.2d at 683. “The 

term ‘disability’ means incapacity because of injury to earn the 

wages which the employee was receiving at the time of injury in 

the same or any other employment.” N.C. Gen. Stat. § 97-2(9) 

(2013).

[I]n order to support a conclusion of 

disability, the Commission must find: (1) 

that plaintiff was incapable after his 

injury of earning the same wages he had 

earned before his injury in the same 

employment, (2) that plaintiff was incapable 

after his injury of earning the same wages 

he had earned before his injury in any other 

employment, and (3) that this individual’s 

incapacity to earn was caused by plaintiff’s 

injury.
-14-

Hilliard, 305 N.C. at 595, 290 S.E.2d at 683. A claimant may 

meet his burden of establishing the existence of a “disability” 

in one of four ways:

(1) the production of medical evidence that 

he is physically or mentally, as a 

consequence of the work related injury, 

incapable of work in any employment;

(2) the production of evidence that he is 

capable of some work, but that he has, after 

a reasonable effort on his part, been 

unsuccessful in his effort to obtain 

employment;

(3) the production of evidence that he is 

capable of some work but that it would be 

futile because of preexisting 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, 108 N.C. App. at 765, 425 S.E.2d at 457 (internal 

citations omitted).

Here, Plaintiff concedes that no medical evidence was 

presented before the Industrial Commission tending to show that 

he is “physically or mentally, as a consequence of the work 

related injury, incapable of work in any employment.” Thus, the 

first prong in Russell is inapplicable to the present appeal. 

Nevertheless, Plaintiff contends that evidence was presented on 

the second, third, and fourth prongs in Russell, which would 
-15-

require the Industrial Commission to make findings of fact with 

respect to those issues. See Cardwell v. Jenkins Cleaners, 

Inc., 365 N.C. 1, 2, 704 S.E.2d 898, 899 (2011) (“Although the 

Commission need not find facts on every issue raised by the 

evidence, it is required to make findings on crucial facts upon 

which the right to compensation depends.” (quotation marks and 

citations omitted)). 

The Full Commission made the following findings of fact

with respect to Plaintiff’s employment history after the 2 March 

2001 injury:

4. Plaintiff attempted to return to work 

with defendant-employer doing light-duty 

tasks, but was laid off on 22 April 2001.

. . . 

7. Defendant-employer subsequently re-hired 

plaintiff, at full-duty, for a short period 

of time.

8. Shortly after he was re-hired, plaintiff 

was terminated by defendant-employer. 

Plaintiff called out from work on two days 

and the next day called to say he was going 

to be late and was then informed he was 

terminated.

9. After being terminated by defendantemployer, plaintiff returned to work for 

other employers as a travelling construction 

worker in the pipe fitting trade.

. . . 
-16-

12. Plaintiff testified that, because of 

his ongoing neck pain, he was forced to stop 

working as a pipe fitter in February 2003. 

Subsequent to that date plaintiff worked in 

various jobs, such as a security guard, 

movie theatre worker, and electrician’s 

helper until May of 2009. The wages 

plaintiff earned subsequent to his 

employment with defendant-employer were not 

sufficiently established by the evidence.

. . . 

20. Plaintiff began a full-time business 

curriculum at Robeson Community College in 

May 2009. Plaintiff graduated with an 

Associate’s Degree May 2012. As of the date 

of the hearing before the Deputy 

Commissioner, plaintiff was a full-time 

student pursuing a Bachelor’s degree in 

Business. As of the date of the hearing 

before the Deputy Commissioner, plaintiff 

was also working part-time at the library as 

a computer lab assistant.

With respect to the second and third prongs of Russell, 

Plaintiff testified at the hearing before the Deputy 

Commissioner that he only continued working as a pipefitter 

between the 2 March 2001 injury and 2003 because he did not have 

an education and could not earn the same wages doing something 

outside of his expertise. Plaintiff testified that in order to 

keep earning money during this timeframe, he worked through 

pain. Plaintiff indicated that he was fired and/or left jobs 

because he had to miss time due to his injury. Plaintiff also 

testified that he experienced periods of unemployment and, at 
-17-

one point, sent out between 200 and 300 resumes without finding 

employment. Plaintiff attributed his inability to find a job, 

in part, to the fact that he lacked a bachelor’s degree. Record 

evidence also showed that on 30 January 2009, Dr. McDonald gave 

Plaintiff working restrictions of no lifting greater than twenty 

pounds and no reaching overhead. 

Notwithstanding this evidence presented at the hearing, the 

Full Commission’s findings of fact do not address Plaintiff’s 

inability to obtain employment after a reasonable effort (prong 

two in Russell), or the futility of finding employment given 

Plaintiff’s lack of education and injury related restrictions 

(prong three in Russell). Defendant contends that the fact that 

Plaintiff obtained employment during the timeframe between the 2 

March 2001 injury and the 25 January 2012 Form 33 filing 

forecloses any possibility of recovering under the second and 

third prongs of Russell. Thus, in Defendant’s view, the Full 

Commission was not required to address those two methods of 

proof in its findings of fact. However, this Court’s recent 

opinion in Beard v. WakeMed, ___ N.C. ___, 753 S.E.2d 708

(2014), does not support Defendant’s argument. In Beard, we 

held that “the evidence and the Commission’s findings of fact 

regarding the evidence support the conclusion that Plaintiff has 
-18-

proven disability under the second prong of Russell” even though 

the plaintiff in that case obtained a part-time position that 

turned into a full-time position which the plaintiff held until 

“a week or two before her hearing before the Industrial 

Commission.” Id. at ___, 753 S.E.2d at 712 (quotation marks 

omitted). Thus, Beard stands for the proposition that a 

claimant may obtain employment between the injury and the 

hearing before the Industrial Commission without foreclosing his 

or her ability to prove disability under the second or third 

prongs in Russell.

Unlike a large number of workers’ compensation cases, here, 

nearly eleven years passed between Plaintiff’s injury and his

claim for indemnity benefits. Given this context, it is not 

unusual that Plaintiff was able to find employment after his 

injury. While the Full Commission is free to weigh the 

credibility of Plaintiff’s testimony and conclude that 

Plaintiff’s burden under prongs two and three have not been met, 

it cannot abdicate its responsibility to address evidence 

presented by Plaintiff upon which the right to compensation 

depends. See Britt v. Gator Wood, Inc., 185 N.C. App. 677, 684, 

648 S.E.2d 917, 922 (2007) (“Where, as here, the findings show 

that plaintiff, although limited in the work he can perform, is 
-19-

capable of performing some work, and there is evidence that 

plaintiff may have satisfied Russell methods two or three, the 

Commission must make findings addressing those two methods of 

proof.” (quotation marks and citation omitted)). Accordingly, 

because Plaintiff produced some evidence at the hearing 

implicating these two methods of proof, the Full Commission 

erred in failing to make findings of fact concerning them. We 

must, therefore, remand to the Full Commission to make such 

findings. See Hilliard, 305 N.C. at 595, 290 S.E.2d at 684 

(stating that “when the findings are insufficient to determine 

the rights of the parties, the court may remand to the 

Industrial Commission for additional findings”).

With respect to the fourth prong in Russell, namely, “the 

production of evidence that [the plaintiff] has obtained other 

employment at a wage less than that earned prior to the injury,” 

Plaintiff contends that Finding of Fact 12 conclusively 

establishes that “Plaintiff could no longer perform pipe-fitting 

after 2003 because of his pain from his injury” and that 

“Plaintiff was incapable of earning the same wages in his prior 

employment of pipe-fitting as a result of this injury.” 

Plaintiff’s argument is misplaced. Finding of Fact 12 states:

12. Plaintiff testified that, because of 

his ongoing neck pain, he was forced to stop 
-20-

working as a pipe fitter in February 2003. 

Subsequent to that date plaintiff worked in 

various jobs, such as a security guard, 

movie theatre worker, and electrician’s 

helper until May of 2009. The wages 

plaintiff earned subsequent to his 

employment with defendant-employer were not 

sufficiently established by the evidence.

Contrary to Plaintiff’s assertion, the first two sentences in 

Finding of Fact 12 are recitations of the testimony presented at 

the hearing, not ultimate facts that are binding on the Full 

Commission. See Jones v. Modern Chevrolet, 194 N.C. App. 86, 

93–94, 671 S.E.2d 333, 338 (2008) (“[R]ecitations of the 

testimony of each witness do not constitute findings of fact by 

the trial judge, because they do not reflect a conscious choice 

between the conflicting versions of the incident in question 

which emerged from all the evidence presented.” (alteration in 

original) (quotation marks and citations omitted)).

Furthermore, the final sentence in Finding of Fact 12, that 

“[t]he wages plaintiff earned subsequent to his employment with 

defendant-employer were not sufficiently established by the 

evidence,” shows that the Full Commission did not find 

Plaintiff’s evidence concerning the fourth prong in Russell

sufficient. While Plaintiff points to his own testimony and his 

responses to interrogatories to show that he met his burden 

under prong four, the Full Commission was within its power to 
-21-

discredit that evidence. See Hassell v. Onslow Cnty. Bd. of 

Educ., 362 N.C. 299, 306–07, 661 S.E.2d 709, 715 (2008) (stating 

that “[t]he Commission may not wholly disregard competent 

evidence; however, as the sole judge of witness credibility and 

the weight to be given to witness testimony, the Commission may 

believe all or a part or none of any witness’s testimony,” and 

“[t]he Commission is not required to accept the testimony of a 

witness, even if the testimony is uncontradicted,” nor must it 

“offer reasons for its credibility determinations” (quotation 

marks and internal citations omitted)). Accordingly, the Full 

Commission did not err in concluding that Plaintiff failed to 

demonstrate the existence of a disability under the fourth prong 

in Russell.

C. Permanent Impairment Benefits

The final issue raised by Plaintiff’s appeal is whether the 

Full Commission erred in finding that Plaintiff has no permanent 

partial impairment warranting recovery for a scheduled injury 

pursuant to N.C. Gen. Stat. § 97-31.

“To obtain an award of benefits under any subsection of 

[N.C. Gen. Stat. §] 97-31, a specific showing that the claimant 

has undergone a diminution in wage-earning capacity is not 

required. Instead, disability is presumed from the fact of 
-22-

injury.” Grant v. Burlington Indus., Inc., 77 N.C. App. 241, 

250–51, 335 S.E.2d 327, 334 (1985). “Thus, the Industrial 

Commission may enter an award pursuant to section 97-31 without 

finding that the employee is disabled.” Childress v. Fluor 

Daniel, Inc., 162 N.C. App. 524, 528, 590 S.E.2d 893, 897 

(2004).

In the parties’ pre-trial agreement, Plaintiff explicitly

identified benefits owed under N.C. Gen. Stat. § 97-31 as one of 

the contested issues to be resolved before the Deputy 

Commissioner. Nevertheless, the opinion and award of the Deputy 

Commissioner did not address this issue by way of findings of 

fact or conclusions of law. Plaintiff assigned the Deputy 

Commissioner’s failure to address this issue as error in his 

Form 44 Application for Review to the Full Commission. The Full 

Commission’s opinion and award has no conclusions of law 

regarding Plaintiff’s right to recovery under N.C. Gen. Stat. § 

97-31. The Full Commission’s opinion and award does contain the 

following pertinent findings of fact:

5. Defendant-employer eventually referred 

plaintiff to Dr. Dixon W. Gerber, an 

orthopedic surgeon. Dr. Gerber examined 

plaintiff on 27 June 2001. Dr. Gerber’s 

medical record from 27 June 2001 reflects 

that plaintiff suffered a neck injury as a 

result of the 2 March 2001 work injury. In 

that record, Dr. Gerber reflects plaintiff’s 
-23-

impression that “[plaintiff] basically feels

that he could probably return to work at any 

time.” Dr. Gerber found that plaintiff was 

at maximum medical improvement and has no 

permanent partial disability. Dr. Gerber 

released plaintiff from treatment without 

restrictions as of 2 July 2001.

. . . .

22. Dr. Rhyne testified that plaintiff’s 

probable permanent partial disability would 

be three percent (3%), or if plaintiff had 

to have surgery, the rating would be in the 

range of five to fifteen percent (5–15%). 

The Commission assigns greater weight to the 

testimony of Dr. Gerber regarding 

plaintiff’s permanent partial disability 

rating as Dr. Gerber was plaintiff’s 

authorized treating physician and Dr. Rhyne 

only performed a one time independent 

medical evaluation. Therefore, based on Dr. 

Gerber’s testimony, the Commission finds 

plaintiff has no permanent partial 

disability.

(Alteration in original). 

Plaintiff contends that Finding of Fact 22 is not supported 

by competent evidence and irreconcilably conflicts with Finding 

of Fact 25, which reads:

25. Based upon the preponderance of the 

evidence in view of the entire record, the 

medical treatment plaintiff received for his 

neck condition, on or before 18 May 2009, 

was reasonable and medically necessary, and 

was reasonably calculated to effect a cure 

and give relief from plaintiff’s 2 March 

2001 compensable injury by accident.
-24-

We agree that Finding of Fact 22 lacks evidentiary support but 

disagree that Finding of Fact 22 and 25 are irreconcilable.

In Finding of Fact 22, the Full Commission assigned greater 

weight to the testimony of Dr. Gerber based on the following 

facts: “Dr. Gerber was plaintiff’s authorized treating physician 

and Dr. Rhyne only performed a one time independent medical 

evaluation.” However, there is no record evidence that Dr. 

Gerber was Plaintiff’s treating physician. Record evidence 

shows that Plaintiff presented to Dr. Gerber once, on 27 June 

2001, for an evaluation. Thus, Dr. Gerber did not provide 

treatment to Plaintiff on an ongoing basis and has not seen 

Plaintiff since 27 June 2001, a few months after the 2 March 

2001 injury. Furthermore, Dr. Gerber was not deposed by either 

party and did not provide testimony at the hearing.2 

Accordingly, we hold that the facts supporting the Full 

Commission’s decision to assign greater weight to Dr. Gerber’s 

opinion were not supported by competent evidence.

However, we disagree with Plaintiff’s contention that 

Finding of Fact 22 cannot be reconciled with Finding of Fact 25. 

In Finding of Fact 22, the Full Commission agreed with Dr.

 

2 The medical record generated by Dr. Gerber after Plaintiff’s 27 

June 2001 evaluation was received into evidence as a documentary 

exhibit to evince Dr. Gerber’s opinion regarding Plaintiff’s 

permanent partial impairment rating.
-25-

Gerber’s assessment that on 27 June 2001, Plaintiff was at 

“maximum medical improvement and has no permanent partial 

disability.” In Finding of Fact 25, the Full Commission found 

that all of “the medical treatment plaintiff received for his 

neck condition, on or before 18 May 2009, was reasonable and 

medically necessary, and was reasonably calculated to effect a 

cure and give relief from plaintiff’s 2 March 2001 compensable 

injury by accident.” 

“Maximum medical improvement” refers to the point in time 

when the injury has stabilized and the healing period has ended. 

Knight v. Wal-Mart Stores, Inc., 149 N.C. App. 1, 12–13, 562 

S.E.2d 434, 442–43 (2002), aff’d per curiam, 357 N.C. 44, 577 

S.E.2d 620 (2003). When a claimant reaches maximum medical 

improvement, he or she may receive scheduled benefits pursuant 

to N.C. Gen. Stat. § 97-31. Id. at 13, 562 S.E.2d at 443. A 

“permanent partial disability rating” is a factual determination 

by a medical professional indicating the degree to which the 

scheduled body part has been permanently impaired for purposes 

of determining compensation under N.C. Gen. Stat. § 97-31. See

generally Leonard T. Jernigan, Jr., North Carolina Workers’

Compensation: Law and Practice with Forms § 13:2, at 143 (4th

ed. 2004) (discussing how impairment ratings are often 
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determined in workers’ compensation cases). Thus, a finding 

that Plaintiff is at maximum medical improvement with no 

permanent partial disability denotes that Plaintiff’s 

compensable injury has healed and/or stabilized, with no 

permanent functional loss to his neck and/or back. The fact 

that Plaintiff has no permanent functional impairment, however, 

does not mean, ipso facto, that ongoing medical treatment will 

not be necessary to “effect a cure and give relief” to the 

underlying injury. Accordingly, we disagree that Finding of 

Fact 22 and 25 are irreconcilable. Nevertheless, if, on remand, 

the Full Commission again finds Plaintiff to have no permanent 

partial impairment, the Full Commission is instructed to enter 

additional findings reconciling that finding with Finding of 

Fact 25.

In summary, because the Full Commission failed to enter 

conclusions of law regarding Plaintiff’s right, if any, to 

permanent partial impairment benefits under N.C. Gen. Stat. § 

97-31, and because Finding of Fact 22 is insufficient as 

described above, we vacate Finding of Fact 22 and remand this 

issue for further determination by the Industrial Commission.
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IV. Conclusion

For the foregoing reasons, we remand the question of

Plaintiff’s right to temporary total and temporary partial 

disability under the second and third prongs in Russell to the 

Full Commission for additional fact finding. Furthermore, we 

vacate Finding of Fact 22 in the Full Commission’s opinion and 

award and remand for additional findings of fact and conclusions 

of law on the issue of Plaintiff’s entitlement to permanent 

partial impairment benefits under N.C. Gen. Stat. § 97-31. In 

all other respects, the opinion and award of the Full Commission 

is affirmed.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

Judges STROUD and DILLON concur

Report per Rule 30(e).