An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                           -2-
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 defendant-
         employer, 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
                                       -26-
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.
                                    -27-
                              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).
