Little v. Anson Cnty. Schs. Food Serv., 246 S.E.2d 743 (N.C. 1978). · Go Syfert
Little v. Anson Cnty. Schs. Food Serv., 246 S.E.2d 743 (N.C. 1978). Cases Citing This Book View Copy Cite
264 citation events (59 in the last 25 years) across 3 distinct courts.
Strongest positive: Vernon v. Steven L. Mabe Builders (nc, 1994-06-17)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 34 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Vernon v. Steven L. Mabe Builders (4×) also: Cited as authority (quoted)
N.C. · 1994 · quote attribution · 4 verbatim quotes · confidence high
he criterion for compensation in cases covered by 97-29 or -30 is the extent of the claimant's 'incapacity for work.
cited Cited as authority (rule) Kluttz-Ellison v. Noah's Playloft Preschool
N.C. · 2024 · confidence medium
Food Serv., 295 N.C. 527, 532 (1978).
discussed Cited as authority (rule) Sturdivant v. N.C. Dep't of Pub. Safety
N.C. Ct. App. · 2023 · confidence medium
Indeed, it is axiomatic “ ‘if other pre-existing conditions such as an employee’s age, education and work experience are such that an injury causes him a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the incapacity which he or she suffers, and not for the degree of disability which would be suffered by someone with superior education or work experience or who is younger or in better health[.]’ ” Hilliard v. Apex Cabinet Co., 305 N.C. 593, 596 , 290 S.E.2d 682, 684 (1982) (quoting Little v. Food Service, …
discussed Cited as authority (rule) Griffin v. Absolute Fire Control (2×) also: Cited "see"
N.C. Ct. App. · 2020 · confidence medium
Food Serv., 295 N.C. 527, 531 , 246 S.E.2d 743, 746 (1978).
discussed Cited as authority (rule) Griffin v. Absolute Fire Control (2×) also: Cited "see"
N.C. Ct. App. · 2020 · confidence medium
Food Serv., 295 N.C. 527, 531 , 246 S.E.2d 743, 746 (1978).
cited Cited as authority (rule) Wilkes v. City of Greenville
N.C. · 2017 · confidence medium
Food Serv., 295 N.C. 527, 532 , 246 S.E.2d 743, 746 (1978).
discussed Cited as authority (rule) Roset-Eredia v. F.W. Dellinger, Inc.
N.C. Ct. App. · 2008 · confidence medium
App. 383 , 656 S.E.2d 608 (2008), the North Carolina Supreme Court has held that the relevant inquiry regarding a claimant’s capacity to work “is not whether all or some persons with plaintiff’s degree of injury are capable of working and earning wages, but whether plaintiff herself has such capacity.” Johnson at 391 , 656 S.E.2d at 613 (quoting Little v. Food Serv., 295 N.C. 527, 531 , 246 S.E.2d 743, 746 (1978)).
discussed Cited as authority (rule) Kyle v. Holston Group
N.C. Ct. App. · 2008 · confidence medium
Food Serv., 295 N.C. 527, 533 , 246 S.E.2d 743, 747 (1978), a full investigation into the fairness of'the Agreement necessarily required SDC Maddox to verify defense coun *699 sel’s assertions regarding Plaintiff’s position on vocational rehabilitation and ability to return to work.
discussed Cited as authority (rule) Gore v. Myrtle/Mueller
N.C. Ct. App. · 2006 · confidence medium
In Morrison v. Burlington Indus ., our Supreme Court held that "when an employee afflicted with a pre-existing disease or infirmity suffers a personal injury by accident arising out of and in the course of his employment, and such injury materially accelerates or aggravates the pre-existing disease or infirmity and thus proximately contributes to the death or disability of the employee, the injury is compensable, even though it would not have caused death or disability to a normal person." Morrison v. Burlington Indus., 304 N.C. 1, 16 , 282 S.E.2d 458, 469 (1981) (quoting Little v. Anson Count…
discussed Cited as authority (rule) Devlin v. Apple Gold, Inc. (2×)
N.C. Ct. App. · 2002 · confidence medium
Food Serv., 295 N.C. 527, 531 , 246 S.E.2d 743, 746 (1978)).
cited Cited as authority (rule) Moore v. Concrete Supply Co.
N.C. Ct. App. · 2002 · confidence medium
App. 695, 701 , 501 S.E.2d 360, 365 (1998) (quoting Little v. Food Service, 295 N.C. 527, 534 , 246 S.E.2d 743, 747 (1978) (citations omitted)).
discussed Cited as authority (rule) Bridwell v. Golden Corral Steak House
N.C. Ct. App. · 2002 · confidence medium
In determining whether plaintiff is incapable of earning the same wages at other employment, the Commission is required to focus not *345 on “whether all or some persons with plaintiffs degree of injury are capable of working and earning wages, but whether plaintiff [him]self has such capacity.” Little v. Food Service, 295 N.C. 527, 531 , 246 S.E.2d 743, 746 (1978). “. . . [A]n injured employee’s earning capacity must be measured ... by the employee’s own ability to compete in the labor market.” Peoples v. Cone Mills Corp., 316 N.C. 426, 437 , 342 S.E.2d 798, 805 (1986).
cited Cited as authority (rule) Lanning v. Fieldcrest-Cannon, Inc.
N.C. · 2000 · confidence medium
Food Serv., 295 N.C. 527, 531 , 246 S.E.2d 743, 746 (1978).
discussed Cited as authority (rule) Tucker v. Workable Co., Inc.
N.C. Ct. App. · 1998 · confidence medium
A stipulation approved by the Commission “is binding absent a showing that ‘there has been error due to fraud, misrepresentation, undue influence or mistake ... [.]’ ” Little v. Food Service, 295 N.C. 527, 534 , 246 S.E.2d 743, 747 (1978) (citations omitted).
cited Cited as authority (rule) Gray v. Carolina Freight Carriers, Inc.
N.C. Ct. App. · 1992 · confidence medium
Little v. Food Service, 295 N.C. 527, 533 , 246 S.E.2d 743, 747 (1978).
examined Cited as authority (rule) Weaver v. Swedish Imports Maintenance, Inc. (6×) also: Cited "see"
N.C. · 1987 · confidence medium
If preexisting conditions such as the employee's age, education and work experience are such that an injury causes the employee a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the actual incapacity he or she suffers, and not for the degree of disability which would be suffered by someone younger or who possesses superior education or work experience. *483 Little v. Food Service, 295 N.C. 527, 532 , 246 S.E.2d 743, 746 (1978).
discussed Cited as authority (rule) Hendrix v. Linn-Corriher Corp. (2×)
N.C. · 1986 · confidence medium
In considering whether the plaintiff is incapable of earning the same wages at other employment, the Commission and the reviewing court must focus not on “whether all or some persons with plaintiffs degree of injury are capable of working and earning wages, but whether plaintiff [himjself has such capacity.” Lit *188 tle v. Food Service, 295 N.C. 527, 531 , 246 S.E. 2d 743, 746 (1978).
discussed Cited as authority (rule) Peoples v. Cone Mills Corp. (2×)
N.C. · 1986 · confidence medium
Little v. Food Service, 295 N.C. 527, 532 , 246 S.E.2d 743, 746 (1978).
cited Cited as authority (rule) Kendrick v. City of Greensboro
N.C. Ct. App. · 1986 · confidence medium
Fleming v. K-Mart Corp.,. 312 N.C. 538, 543-46 , 324 S.E. 2d 214, 217-19 (1985); Little v. Food Service, 295 N.C. 527, 530-31 , 246 S.E. 2d 743, 745-46 (1978); Jones v. Murdoch Center, 74 N.C.
discussed Cited as authority (rule) Holder v. Neuse Plastic Co.
N.C. Ct. App. · 1983 · confidence medium
Finally, the evidence in Little , like that on which defendants rely here, indicated that an injury to plaintiffs spinal cord was the cause of “weakness in all of her extremities, and numbness or loss of sensation throughout her body.” See Little, supra, 295 N.C. at 530-31 , 246 S.E. 2d at 745 (emphasis omitted).
cited Cited as authority (rule) Hundley v. Fieldcrest Mills
N.C. Ct. App. · 1982 · confidence medium
Little v. Food Service, 295 N.C. 527, 532 , 246 S.E. 2d 743, 746 (1978).
discussed Cited as authority (rule) Robinson v. JP Stevens and Co., Inc.
N.C. Ct. App. · 1982 · confidence medium
If [he] is able to work and earn some wages, but less than [he] was receiving at the time of [his] injury, [he] is partially disabled.” Little v. Food Service, 295 N.C. 527, 533 , 246 S.E. 2d 743, 747 (1978).
cited Cited "see" Sturdivant v. N.C. Dep't of Pub. Safety
N.C. · 2024 · signal: see · confidence high
See Little, 295 N.C. at 531 .
examined Cited "see" McLean v. Eaton Corp. (4×)
N.C. Ct. App. · 1997 · signal: see · confidence high
See Little v. Anson County Schools Food Service, 295 N.C. 527, 531 , 246 S.E.2d 743, 746 (1978).
discussed Cited "see" Bermuda Run Country Club, Inc. v. Atwell (2×)
N.C. Ct. App. · 1995 · signal: see · confidence high
See Little v. Food Service, 295 N.C. 527 , 246 S.E.2d 743 (1978).
discussed Cited "see" Radica v. Carolina Mills (2×)
N.C. Ct. App. · 1994 · signal: see · confidence high
See Little v. Food Service, 295 N.C. 527 , 246 S.E.2d 743 (1978).
discussed Cited "see" Watson v. Winston-Salem Transit Authority (2×)
N.C. Ct. App. · 1988 · signal: see · confidence high
See Little v. Food Service, 295 N.C. 527 , 246 S.E. 2d 743 (1978).
discussed Cited "see" Niple v. Seawell Realty & Indus. Co. (2×)
N.C. Ct. App. · 1987 · signal: see · confidence high
See Little v. Anson County Schools Food Service, 295 N.C. 527 , 246 S.E. 2d 743 (1978).
examined Cited "see" Weaver v. Swedish Imports Maintenance, Inc. (4×)
N.C. Ct. App. · 1986 · signal: see · confidence high
See Little v. Food Service, 295 N.C. 527 , 246 S.E. 2d 743 (1978).
discussed Cited "see" Calloway v. Shuford Mills (2×)
N.C. Ct. App. · 1986 · signal: see · confidence high
See *707 Little v. Anson County Schools Food Service, 295 N.C. 527 , 246 S.E. 2d 743 (1978).
examined Cited "see" Dowdy v. Fieldcrest Mills, Inc. (4×)
N.C. · 1983 · signal: see · confidence high
See Little v. Food Service, 295 N.C. 527 , 246 S.E.2d 743 (1978).
examined Cited "see" Nash v. Conrad Industries, Inc. (4×)
N.C. Ct. App. · 1983 · signal: see · confidence high
See Little v. Food Service, 295 N.C. 527 , 246 S.E.2d 743 (1978).
examined Cited "see" Morrison v. Burlington Industries (4×)
N.C. · 1981 · signal: see · confidence high
See A. Larson, Workmen's Compensation § 57.52, at nn. 96-97 (1976), and cases collected therein." (Emphasis supplied.) The Court also said, 295 N.C. at 533 , 246 S.E.2d at 747 : "So the ultimate question remains: To what extent is plaintiff now able to earn, in the same or any other employment, the wages she was receiving at the time of her injury?
discussed Cited "see, e.g." Peoples v. Cone Mills Corp. (2×)
N.C. Ct. App. · 1984 · signal: see, e.g. · confidence low
See, e.g., Little v. Food Service, 295 N.C. 527 , 246 S.E. 2d 743 (1978); Ashley v. Rent-a-Car Co., 271 N.C. 76 , 155 S.E. 2d 755 (1967); Hall v. Thomason Chevrolet, 263 N.C. 569 , 139 S.E. 2d 857 (1965); Anderson v. Motor Co., 233 N.C. 372 , 64 S.E. 2d 265 (1951); Robinson v. J.
Retrieving the full opinion text from the archive…
Elva L. Little
v.
Anson County Schools Food Service and Travelers Insurance Company
8.
Supreme Court of North Carolina.
Aug 29, 1978.
246 S.E.2d 743
Henry T. Drake, attorney for plaintiff appellant. , B. Irvin Boyle and Norman A. Smith of Boyle, Alexander and Hord, attorneys for defendant appellees.
Huskins.
Cited by 89 opinions  |  Published
2 passages pin-cited by 1 case
Pinpoint authority: bottom 76%
Citer courts: Supreme Court of North Carolina (2)
HUSKINS, Justice.

By her first, second and fourth assignments of error plaintiff challenges the correctness of the decision of the Court of Appeals affirming the Commission’s determination that she has suffered a “permanent partial disability of 45% or loss of use of her back” which entitles her to receive compensation equal to two-thirds of her average weekly wage for a period of 135 weeks pursuant to G.S. 97-31(23).

G.S. 97-31 provides in pertinent part: “In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation, including disfigurement, to wit: . . . (23) For the total loss of use of the back, sixty-six and two-thirds percent (66%%) of the average weekly wages during 300 weeks. The compensation for partial loss of use of the back shall be such proportion of the periods of payment herein provided for total loss as such partial loss bears to total loss . . . .”

We have reviewed the testimony of Drs. Greenhoot and Mahaley and find no support for the conclusion that plaintiff has suffered a 45 percent loss of use of her back and nothing more. Rather, the physicians indicate that an injury to plaintiff’s spinal[*531] cord has resulted in weakness in all of her extremities, and numbness or loss of sensation throughout her body. The doctors further testify that she has suffered diminished mobility and has “difficulty with position sense and with recognition of things in her hands when objects are placed in her hands.” All of this testimony is uncontradicted. Under such circumstances the Commission may not limit plaintiff to an award under G.S. 97-31(23). The impairments described above are compensable under other sections or subsections of the Workmen’s Compensation Act and are not subsumed under the provisions of subsection (23) which provides compensation only “for loss of use of the back.” If the Commission determines plaintiff has suffered these impairments, as the uncontradicted evidence tends to show, the award must take into account these and all other compensable injuries resulting from the accident. “[T]he injured employee is entitled to an award which encompasses all injuries received in the accident.” Giles v. Tri-State Erectors, 287 N.C. 219, 214 S.E. 2d 107 (1975).

For the reasons given, this case must be remanded to the Industrial Commission for further proceedings. However, because of the substantial likelihood that other questions will arise again during these further proceedings, we deem it appropriate to address certain matters raised by plaintiff’s brief and by the opinion of the Court of Appeals.

Both the full Industrial Commission and the Court of Appeals overruled plaintiff’s contention that she is entitled to benefits for total incapacity for work by referring to the testimony of Dr. Mahaley that “there are some gainful occupations that someone with [plaintiff’s] degree of neurological problem could pursue,” and to the absence of any testimony that she is totally disabled.

We first note that Dr. Mahaley’s quoted statement is an oblique generality which sheds no light on plaintiff’s capacity to earn wages. Uncontradicted evidence establishes that she is over fifty years of age, somewhat obese, has an eighth grade education, and at the time of her accident had been working as a laborer earning less than $2.00 per hour. The relevant inquiry under G.S. 97-29 is not whether all or some persons with plaintiff’s degree of injury are capable of working and earning wages, but whether plaintiff herself has such capacity. In Anderson v. Motor Co., 233 N.C. 372, 64 S.E. 2d 265 (1951), Justice Ervin, writing for the Court, noted: “While there seems to be no case on the specific point in this[*532] State, courts in other jurisdictions hold with virtual uniformity that when an employee afflicted with a pre-existing disease or infirmity suffers a personal injury by accident arising out of and in the course of his employment, and such injury materially accelerates or aggravates the pre-existing disease or infirmity and thus proximately contributes to the death or disability of the employee, the injury is compensable, even though it would not have caused death or disability to a normal person.” Similarly, if other pre-existing conditions such as an employee’s age, education and work experience are such that an injury causes him a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the incapacity which he or she suffers, and not for the degree of disability which would be suffered by someone with superior education or work experience or who is younger or in better health. See A. Larson, Workmen’s Compensation § 57.51, at nn. 96-97 (1976), and cases collected therein. Dr. Mahaley’s testimony sheds no light on plaintiff’s capacity to pursue gainful employment. Consequently his testimony affords no basis for the Commission to conclude plaintiff has not suffered total incapacity for work.

Nor may plaintiff be denied benefits for total disability by reason of her failure thus far to present evidence that she is in fact totally disabled. In workmen’s compensation cases a claimant generally bears the burden of proving the extent or degree of disability suffered. Hall v. Chevrolet, Inc., 263 N.C. 569, 139 S.E. 2d 857 (1965). Compare Larson, supra § 57.61, at nn. 24-34 (1976). In the present case, however, the record shows that plaintiff sought to present her own testimony on this subject, but refrained from doing so when Deputy Commissioner Dandelake stated that her testimony would pertain to an uncontested issue and was unnecessary. Under G.S. 97-84 a party to workmen’s compensation proceedings is afforded the right to testify and present such relevant evidence as he may choose. “[T]he determinative facts upon which the rights of the parties must be made to rest must be found . . . after all parties have been given full opportunity to be heard.” Biddix v. Rex Mills, Inc., 237 N.C. 660, 75 S.E. 2d 777 (1953). When a claimant refrains from presenting evidence in reliance on an inaccurate statement by a deputy commissioner that a certain matter is uncontested, the right guaranteed by G.S. 97-84 has been abridged and the claimant’s failure to present such evidence may not be used against him. Accordingly, before the[*533] Commission may determine that plaintiff is not entitled to compensation for permanent total disability, she must be afforded an opportunity to present evidence relevant to her capacity to work and earn wages.

We think it appropriate to emphasize again that the criterion for compensation in cases covered by G.S. 97-29 or -30 is the extent of the claimant’s “incapacity for work.” Here, the physicians’ estimates of plaintiff’s disability do not refer to the diminution of plaintiff’s wage earning capacity because of her injury, but refer only to the degree of loss of use of her nervous system (Dr. Mahaley) or the impairment of her ability to carry out “total life functions” (Dr. Greenhoot). A person may be wholly incapable of working and earning wages even though her ability to carry out normal life functions has not been wholly destroyed and even though she has not lost 100 percent use of her nervous system. See cases collected in 99 C.J.S., Workmen’s Compensation, § 295, n. 18 (Cum. Supp. 1978).

So the ultimate question remains: To what extent is plaintiff now able to earn, in the same or any other employment, the wages she was receiving at the time of her injury? If she is unable to work and earn any wages, she is totally disabled. 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. See Watts v. Brewer, 243 N.C. 422, 90 S.E. 2d 764 (1956); Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E. 2d 570 (1942). Compare Larson, supra, § 58.20, n. 34 et seq.

If she is able to work and earn some wages, but less than she was receiving at the time of her injury, she is partially disabled. G.S. 97-2(9). In that event she is entitled to an award under G.S. 97-31 for such of her injuries as are listed in that section, and to an additional award under G.S. 97-30 for the impairment of wage earning capacity which is caused by any injuries not listed in the schedule in G.S. 97-31. See Morgan v. Norwood, 211 N.C. 600, 601-02, 191 S.E. 345, 346 (1937). See generally W. Schneider, Workmen’s Compensation Text § 2318 (1957).

By her fifth assignment of error plaintiff contends the Commission erred in its calculation of her average weekly wage. The[*534] record shows that plaintiff and defendants entered into a stipulation that “the average weekly wage of the employee at the time of said injury, including overtime and all allowances, was $62.40.” This stipulation was approved by the Commission and is binding absent a showing that “there has • been error due to fraud, misrepresentation, undue influence or mutual mistake ...” G.S. 97-17; Pruitt v. Knight Publishing Co., 289 N.C. 254, 221 S.E. 2d 355 (1976). No such showing or allegation has been made.

For the reasons given the judgment of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for remand to the Industrial Commission for further proceedings in accordance with this opinion.

Reversed and remanded.