Whitley v. Columbia Lumber Mfg. Co.

336 S.E.2d 642 (1985)

Benjamin A. WHITLEY, Employee, v. COLUMBIA LUMBER MFG. CO., Employer, and Indiana Lumbermens Mutual Insurance Company, Insurer.

No. 8510IC575.

Court of Appeals of North Carolina.

December 3, 1985.

Charles M. Welling, Charlotte, for plaintiff, appellee.

George C. Collie, Charlotte, for defendants, appellants.

HEDRICK, Chief Judge.

The sole question on this appeal is whether a plaintiff who is totally and permanently disabled due to a 30% permanent partial disability of the left hand and a 75% permanent partial disability of the right hand is entitled to permanent total disability compensation under G.S. 97-29 or to permanent partial disability compensation under G.S. 97-31(12).

The plaintiff cites Fleming v. K-Mart Corp., 312 N.C. 538, 324 S.E.2d 214 (1985) and West v. Bladenboro Cotton Mills, 62 N.C.App. 267, 302 S.E.2d 645 (1983) in support of his contention that he is entitled to permanent total disability compensation under G.S. 97-29. West is a chronic obstructive lung disease case and is clearly distinguishable from the case at hand. Fleming is contrary to appellee's contention:

If [plaintiff] is unable to work and earn any wages, she is totally disabled. *643 G.S. 97-2(9). In that event, unless all her injuries are included in the schedule set out in G.S. 97-31, she is entitled to an award for permanent total disability under G.S. 97-29. If all her injuries are included in the schedule set out in G.S. 97-31, she is entitled to compensation exclusively under G.S. 97-31. This is true from the language of the statute itself.

Fleming v. K-Mart Corp., 312 N.C. 538, 545, 324 S.E.2d 214, 218 (1985) (citations omitted).

All of plaintiff's injuries are scheduled in G.S. 97-31(12). When all of plaintiff's injuries are included in the schedule set out in G.S. 97-31, the injured employee is entitled to compensation exclusively under G.S. 97-31 regardless of his ability or inability to work. Perry v. Furniture Co., 296 N.C. 88, 249 S.E.2d 397 (1978).

We are bound by the decisions of our Supreme Court to hold that the Industrial Commission erred in awarding compensation under G.S. 97-29 rather than G.S. 97-31. Therefore, the opinion and award of the Industrial Commission is reversed.

Reversed and remanded.

EAGLES and MARTIN, JJ., concur.