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technical correction prior to official publication in the North Carolina
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NO.
COA07-644
NORTH
CAROLINA COURT OF APPEALS
Filed:
20 May 2008
JONATHAN ROSET-EREDIA,
a/k/a
LIBORIO VALDAVINOS-BARRIGA,
Employee-Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 183149
F.W. DELLINGER, INC.,
Employer-Defendant,
and
NORTH CAROLINA INSURANCE
GUARANTY ASSOCIATION,
Carrier-Defendant.
Appeal
by defendants from an Opinion and Award entered 2 February 2007 by the North
Carolina Industrial Commission. Heard in the Court of Appeals 28 November 2007.
The
Law Offices of Robert J. Willis, by Robert J. Willis, for plaintiff-appellee.
Brooks,
Stevens & Pope, P.A., by Robert S. Welch and James A. Barnes IV, for
defendants-appellants.
Carol
L. Brooke, for North Carolina Justice Center, Amicus
Curiae.
STEELMAN,
Judge.
When
plaintiff presented sufficient evidence of total disability and
defendant-employer failed to rebut plaintiff’s evidence, the Industrial
Commission did not err in concluding that plaintiff is temporarily totally
disabled.
I. Factual Background and Procedural History
Jonathan Roset-Eredia, a/k/a Liborio
Valdavinos-Barriga (plaintiff), was 35 years of age at the time of the hearing
before the deputy commissioner, and was an undocumented worker from
Mexico. He can read and write in
Spanish, but is functionally illiterate in English. On 27 July 2001, plaintiff broke his right leg and ankle in the course
and scope of his duties as an employee of F.W. Dellinger, Inc.
(“defendant”). Defendant and its
insurance carrier North Carolina Insurance Guaranty Association (hereinafter
collectively referred to as “defendants”) accepted plaintiff’s claim as compensable,
began providing temporary total disability benefits on 2 August 2001, and filed
a Form 60 in February 2002. Plaintiff
has had nine orthopedic and plastic surgeries on his leg. In August 2004, plaintiff’s treating
physician, Dr. Hage, found plaintiff to be at maximum medical improvement,
found a 35% permanent partial disability to the right leg, released him to work
with permanent light-duty restrictions, and referred him to vocational
rehabilitation. Plaintiff’s physical
restrictions included no climbing, no squatting, no standing for more than one
hour at a time, and no lifting over 35 pounds.
On
15 July 2003 plaintiff’s vocational rehabilitation began. Due to plaintiff’s status as an undocumented
alien, he was unable to complete an I-9 form to document his legal work
status. Angela Prenoveau (“Prenoveau”),
a certified rehabilitation counselor at Southern Rehabilitation Network (“SRN”)
performed two labor market surveys, dated 14 January 2004 and 5 October 2004,
to determine what jobs were available in plaintiff’s geographic area that
plaintiff could do based on his work and education history, transferable
skills, and physical restrictions.
Prenoveau did not communicate with any of the potential employers listed
in her labor market surveys to determine what the jobs required in terms of
physical activities, reading, mathematical, and writing skills due to her
understanding of the SRN policy regarding federal immigration law limitations
on job placement activity for injured workers who declined to complete an I-9
Employment Eligibility Verification form.
Prenoveau understood the limitations to prohibit her from such
communication with potential employers.
However, Prenoveau testified that her former employer, the North
Carolina State Division of Vocational Rehabilitation, did not construe federal
immigration law to prohibit that type of job placement activity by
rehabilitation counselors employed by the State. Likewise, Jane Coburn (“Coburn”), Prenoveau’s co-worker,
testified that she did not understand SRN policy to prohibit her communication
with potential employers listed in a job market survey to determine what the
jobs required in terms of physical activities.
The
Full Commission filed an Opinion and Award on 2 February 2007, which held that
as a result of his work-related injuries, plaintiff was totally disabled from
earning wages and ordered the payment of temporary total disability at the rate
of $407.95 per week pending further orders of the Commission. The Opinion and Award further directed
defendants to pay for plaintiff’s ongoing medical treatment and vocational
rehabilitation services. Prenoveau and
SRN were ordered replaced as the vocational rehabilitation professionals with
Stephen Carpenter. Defendants
appeal. Plaintiff makes several
cross-assignments of error.
II. Commission’s Conclusion of Law
In their first argument, defendants contend that
the Commission erred in concluding that plaintiff is totally disabled within
the meaning of N.C. Gen. Stat. _ 97-2(9). Defendants argue that the evidence does not support such a
finding, and that the Commission’s conclusion of law was in error. We disagree.
The
standard of review of an Industrial Commission’s Opinion and Award is
whether any competent
evidence supports the Commission’s findings of fact and whether [those]
findings . . . support the Commission’s conclusions of law. The Commission’s
findings of fact are conclusive on appeal when supported by such competent
evidence, even though there [is] evidence that would support findings to the
contrary.
McRae
v. Toastmaster, Inc.,
358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (internal citations and
quotations omitted). “If the finding of
fact is essentially a conclusion of law . . . it will be treated as a
conclusion of law which is reviewable on appeal.” Bowles Distributing Co. v. Pabst Brewing Co., 69 N.C. App.
341, 344, 317 S.E.2d 684, 686 (1984) (citations omitted). The Commission’s conclusions of law are
reviewed de novo. McRae
at 496, 597 S.E.2d at 700 (citation omitted).
N.C.
Gen. Stat. _
97-2 of the Worker’s Compensation Act defines “disability” as “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) (2007). The employee bears the burden of proving
“both the existence of his disability and its degree.” Hilliard v. Apex Cabinet Co., 305
N.C. 593, 595, 290 S.E.2d 682, 683 (1982) (citation omitted). In order to meet this burden, the employee
must show at least one of the following:
(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
v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (internal
citations omitted).
Once
the employee presents substantial evidence that he or she is incapable of
earning wages, “the employer has the burden of producing evidence to rebut the
claimant’s evidence.” Burwell v.
Winn-Dixie Raleigh, 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994). “This requires the employer to come forward
with evidence to show not only that suitable jobs are available, but also
that the plaintiff is capable of getting one, taking into account both
physical and vocational limitations.” Id.
(citations omitted).
An employee is “capable of getting” a job if “there
exists a reasonable likelihood . . . that he would be hired if he diligently
sought the job.” It is not necessary .
. . that the employer show that some employer has specifically offered
plaintiff a job. If the employer produces evidence that there are suitable jobs
available which the claimant is capable of getting, the claimant has the burden
of producing evidence that either contests the availability of other jobs or
his suitability for those jobs, or establishes that he has unsuccessfully
sought the employment opportunities located by his employer.
Burwell at 73-74, 441 S.E.2d at
149 (internal citations omitted). Whether
the evidence of suitable jobs is sufficient to satisfy the employer’s burden is
a question of fact for the Commission. Id.
Where
the injured employee is an illegal alien, the employer must “produce sufficient
evidence that there are suitable jobs plaintiff is capable of getting, ‘but
for’ his illegal alien status.” Gayton
v. Gage Carolina Metals, Inc., 149 N.C. App. 346, 351, 560 S.E.2d 870, 874
(2002). Although federal law prohibits
employers from hiring, recruiting or referring for a fee unauthorized aliens, 8
U.S.C. §1324a(a) (1) (A) (1994), this Court has held that employers may
“perform labor market surveys to determine what jobs, if any, are available in
the area where plaintiff resides that fit [the injured worker’s] physical
limitations.” Gayton at 350, 560
S.E.2d at 873. We are bound by the holdings
of this Court in Gayton. See
In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Defendants
argue that plaintiff did not present sufficient evidence to satisfy his burden
of proof under Russell, supra.
Specifically, defendants contend that plaintiff did not present adequate
evidence that seeking employment is futile because of preexisting conditions,
such as his lack of education and English language deficiencies. The parties do not dispute, and the record
establishes, that plaintiff is capable of doing some work, that he does not
have a job, and that he has not made reasonable efforts to obtain employment.
Therefore, the only question is whether plaintiff presented sufficient credible
evidence that seeking employment was futile because of preexisting conditions.
The
Commission found that:
53. Plaintiff’s vocational expert, Stephen
Carpenter, was of the opinion that plaintiff has no transferable skills from
his past work history, that he can no longer perform his former job as a sheet
rock finisher, that his work-related injuries and other vocational skills limit
him from a full range of light work with a functional capacity of sedentary,
and that it is unlikely that plaintiff can find suitable sedentary work, even
at the unskilled level, as he has significant English language deficiencies. As
a result of these marked physical and vocational limitations, it is Mr.
Carpenter’s opinion, and the Full Commission finds as fact, that plaintiff has
not and will not be able to enter the competitive labor market until he becomes
proficient in the English language and retrains pursuant to the recommendations
of Mr. Carpenter.
There
is evidence in the record that supports this finding. Carpenter testified in his deposition that plaintiff had no transferable
skills. Carpenter’s Vocational Report,
dated 8 November 2004, states that plaintiff would probably not be able to find
sedentary work due to his “significant English language deficiencies,” as well
as “marked physical and vocational limitations.” Carpenter’s report concluded that plaintiff would “not be able to
enter the competitive labor market until he becomes proficient in the English
language and retrains.”
Defendants
assert that Carpenter’s testimony is incompetent because he did not “provide
his opinions to a reasonable degree of professional certainty.” Although “expert opinion testimony [which]
is based merely upon speculation and conjecture, . . . [] is not sufficiently
reliable to qualify as competent evidence,”
Holley v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750, 753
(2003), the degree of an expert’s certainty goes to the weight of his
testimony, not its admissibility. Adams
v. Metals USA, 168 N.C. App. 469, 483, 608 S.E.2d 357, 365 (2005). The Commission found Carpenter’s testimony
to be credible, and afforded it weight accordingly. In accordance with the applicable standard of review, we decline
to reweigh the evidence. See
Matthews v. City of Raleigh, 160 N.C. App. 597, 599-600, 586 S.E.2d 829,
833 (2003).
The
Commission further found:
56. Based upon the evidence of record
concerning plaintiff’s medical, vocational and literacy limitations, the Full
Commission finds that plaintiff has met his burden of proof to show that the
compensable injury that he suffered to his right foot and ankle on July 27,
2001 caused him and continues to cause him to be unable to earn the wages that
he had been able earn [sic] before July 27, 2001 in the same or any other
employment from July 27, 2001 through the present and continuing.
We
first note that “[a]lthough designated as a finding of fact, the character of
this statement is essentially a conclusion of law and will be treated as such
on appeal.” Britt v. Britt, 49
N.C. App. 463, 470, 271 S.E.2d 921, 926 (1980) (citation omitted). We therefore review this finding de novo
to determine whether it is supported by the Commission’s findings.
Although the Commission did not specifically state that it was futile for plaintiff to seek other employment, it found that plaintiff could not enter the labor market due to his limitations, and we hold that finding of fact 53 is essentially a finding of futility. We further hold that finding of fact 56 is supported by finding of fact 53, that plaintiff was unable to earn the wages he was earning before his injury, and that this constituted a disability within the meaning of N.C. Gen. Stat. _ 97-2(9).
Defendants
argue that evidence was presented that plaintiff was capable of some work and
that there was no medical evidence supporting the futility prong, and contend
that this evidence negates a finding by the Commission that it would be futile
for the plaintiff to seek work.
Defendants cite Carpenter’s testimony that some of the jobs in the labor
market surveys performed by Prenoveau could potentially be modified by the
employer to accommodate a paraplegic worker, and that if a job description
accommodated plaintiff’s restrictions, plaintiff could perform the job. As
noted in Stevie Johnson v. City of Winston-Salem, ___ N.C. App. ___, 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 ___, 656 S.E.2d at 613
(quoting Little v. Food Serv., 295 N.C. 527, 531, 246 S.E.2d 743, 746
(1978)). In Little, the Court
stated that a physician’s testimony that “there are some gainful occupations
that someone with [plaintiff’s] degree of neurological problem could pursue,”
was “an oblique generality which sheds no light on plaintiff’s capacity to earn
wages.” Little at 531, 246
S.E.2d at 746. Carpenter’s testimony
that it is hypothetically possible that plaintiff could perform some sedentary
work if the jobs were modified is a generality which sheds no light on
plaintiff’s capacity to earn wages. See
id.; Johnson at ___, 656 S.E.2d at 613. Further, we note that Carpenter stated several times that
“[r]ealistically, these jobs are far beyond [plaintiff’s] abilities and his
functional capacity[.]”
Once
plaintiff presented substantial evidence that he was unable to earn wages, the
burden shifted to defendants to show that suitable jobs were available to
plaintiff and that he was capable of getting one of those jobs. See Burwell at 73, 441 S.E.2d
at 149.
The Commission made the following pertinent findings of fact relating to defendants’ evidence:
50. In her completion of the October 2004
Labor Market Surveys, Ms. Prenoveau did not communicate in any way with any of
the potential employers listed in the October 2004 Labor Market Survey to
determine what the particular job(s) actually required in terms of physical
activities, reading, mathematical, and writing skills. . .
51. Despite her use of the Labor Market
Survey procedures described, Ms. Prenoveau gave the opinion that p1aintiff “might
reasonably have expected” to find one of the jobs listed in her Labor Market
Surveys if he made reasonable efforts to search for the job, that those jobs “may
be appropriate for him”, that he “could have a reasonable chance of
obtaining one of those jobs or some of those jobs if you made a reasonable
effort to search for them”, that “there was a reasonable chance that he
would obtain employment within his restrictions in the area had he signed up
with one of those [temporary] agencies”, and that “contacting any of those
[temporary] agencies could lead to employment for him”. (emphasis in
original)
The
Commission found that Prenoveau’s opinions
were either speculative
(“could”, “might”, reasonable “chance”) or based in substantial part on labor
market surveys which failed to include any specific information as to the
actual physical, language and educational requirements of those jobs due to Ms.
Prenoveau’s failure to directly consult with any of the employers listed in
those surveys about those physical, language and educational requirements[.]
In
the instant case, the Commission stated that it “gives little weight to these
vocational opinions.” As the Commission
is the sole judge of the credibility of the witnesses and has rejected as not
credible defendants’ evidence that suitable jobs were available which plaintiff
was capable of obtaining, we hold that defendants did not meet their burden of producing
evidence to show that suitable jobs were available and that plaintiff was
capable of getting one, taking into account plaintiff’s physical and vocational
limitations. See Burwell at 73,
441 S.E.2d at 149.
The
facts of the instant case are distinguishable from those in an unpublished
decision by this Court, Nicandro Sosa-Parada v. Custom Maintenance, Inc.,
et. al., No. COA06-89 (2006), cited by defendants. In Sosa-Parada, we held that the
employer had met his burden of proof by completing a labor market survey which
identified numerous jobs within the plaintiff’s geographical area and physical
restrictions which the plaintiff was capable of securing. A treating physician reviewed the labor
market survey and approved four of the job descriptions as appropriate for
plaintiff.
In
the instant case, Prenoveau did not communicate with any of the employers
listed in the labor market surveys to determine what the particular jobs
required. Therefore, Prenoveau was
unable to demonstrate that the jobs contained in those surveys were suitable
for plaintiff or that he was capable of securing one of the jobs listed.
Because
the Commission’s findings of fact are supported by the evidence, and its
conclusions of law are supported by the findings, we affirm the award of the
Commission. This argument is without
merit.
III. Salaam Violation
In their next argument, defendants contend that
the Commission erred in concluding that a Salaam violation
occurred. We disagree.
Pursuant
to Rule VII.D of the North Carolina Industrial Commission Rules for
Rehabilitation Professionals, promulgated pursuant to N.C. Gen. Stat. _ 97-25.5 and clarified
by the decision in Salaam v. N.C. DOT, 122 N.C. App. 83, 468 S.E.2d 536
(1996), rehabilitation professionals are prohibited from communicating with a
treating physician without the prior consent of the injured worker’s attorney.
In
the instant case, the Full Commission found that Prenoveau “contacted Dr. Hage
directly without the consent of plaintiff in an effort to convince Dr. Hage to
order a functional capacity evaluation.”
The Commission concluded that:
5. The actions of Angela Prenoveau in
contacting Dr. Hage were in violation of the principles set out in Crist v.
Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990), and Salaam v. N.C. Dept. of
Transp., 122 N.C. App. 83, 468 S.E.2d 536 (1996), disc. review
improvidently allowed, 345 N.C. 494, 480 S.E.2d 51 (1997). See Mayfield
v. Parker Hannifen, 174 N.C. App. 386, 621 S.E.2d 243 (2005).
The Commission’s award
provided that:
10. Based upon the Salaam violation .
. . the Full Commission exercises its discretion to require defendant-carrier
to replace both Angela Prenoveau and Southern Rehabilitation Network, Inc.
(“SRN”) as the vocational rehabilitation professionals assigned to this case
with Stephen Carpenter . . .
The
progress report from SRN cited by plaintiff as showing a violation of Salaam
establishes that it was Beth Ezzell, not Prenoveau, who attempted to contact or
contacted Dr. Hage’s staff in April 2005.
Although
the evidence in the record does not support the Commission’s finding of fact in
this matter, and the Commission’s conclusion of law is likewise unsupported,
“[t]o warrant reversal, the Industrial Commission’s error must be material and
prejudicial.” Taylor v. Pardee Hospital,
83 N.C. App. 385, 387, 350 S.E.2d 148, 150 (1986) (citation omitted).
Our
review of the transcripts, records, and briefs supports the Commission’s
finding that a Salaam violation occurred. A report by Beth Ezzell states that she repeatedly communicated
with the receptionists and assistant of Dr. Hage to inquire whether Dr. Hage
“feels the Functional Capacity Evaluation is necessary to determine the IW’s
limitations and abilities” pursuant to a request from the adjuster.
Defendants
have made no argument as to how the Commission’s finding regarding the identity
of the particular SRN employee is material in light of the Commission’s
conclusion that a Salaam violation occurred, and its decision to replace
SRN with Stephen Carpenter. This
argument is without merit.
IV. Functional Capacity Evaluation
In their next argument, defendants contend that
the Commission erred in failing to address the issue of whether an updated
Functional Capacity Evaluation (“FCE”) was warranted. We disagree.
In
paragraph 4 of its award, the Commission stated that
4. Defendants shall authorize and pay for
the additional vocational and medical assistance, evaluation(s), and/or
treatment that are described in Paragraphs 1-6 of Mr. Carpenter’s report dated
November 8,2004 in order to effect a cure, provide relief, and/or lessen the
period of plaintiff’s disability.
The
first paragraph of the proposed recommendations in Carpenter’s report was that
plaintiff obtain a
[c]onsultation with the
attending medical specialist to determine the status of the osteomyelitis and
other impairments affecting medical stability.
Consultation with the physician should include outline of a treatment
plan to cure the chronic osteomyelitis and to improve functional capacity so
that the client can eventually engage in a full range of competitive work
activity.
This recommendation addresses the issue of the necessity of a new FCE and makes clear that, in Carpenter’s opinion, an FCE was unwarranted and that plaintiff should instead consult with a medical specialist regarding his physical abilities. Further, during the deposition of Dr. Hage, he was asked about the usefulness of an FCE in determining plaintiff’s restrictions. Dr. Hage responded that:
I felt comfortable,
given the restrictions that I gave, based on my exam of the patient and my
interpretation of the x-rays, and my talking to Mr. Roset-Eredia about his
limitations, and what he can or can’t do.
And I didn’t feel like, at that point, a functional capacity exam was
necessary . . .
We hold that, by its adoption of Carpenter’s recommendation, which is corroborated by Dr. Hage’s opinion, the Commission addressed the issue of the necessity of an FCE. This argument is without merit.
V. Plaintiff’s Cross-Appeal
Plaintiff presents four cross-assignments of
error. Plaintiff acknowledges, and we
agree, that these arguments are moot due to our affirming the award of the Full
Commission. The only argument in
plaintiff/cross-appellant’s brief not rendered moot is plaintiff’s request for
attorney’s fees for this appeal.
We note that a request to this Court for an award of fees pursuant to N.C. Gen. Stat. §97-88 was not properly raised as a cross-assignment of error. N.C.R. App. P. 10(d) (2008).
N.C.
Gen. Stat. §97-88 provides that:
If the Industrial Commission
at a hearing on review or any court before which any proceedings are brought on
appeal under this Article, shall find that such hearing or proceedings were
brought by the insurer and the Commission or court by its decision orders the
insurer to make, or to continue payments of benefits . . . to the injured
employee, the Commission or court may further order that the cost to the
injured employee of such hearing or proceedings including therein reasonable
attorney’s fee to be determined by the Commission shall be paid by the insurer
as a part of the bill of costs.
N.C.
Gen. Stat. §97-88 (2007). Even assuming
plaintiff had properly moved for expenses and fees under N.C. Gen. Stat.
§97-88, in our discretion, we decline to issue such an order.
AFFIRMED.
Judges
MCCULLOUGH and GEER concur.