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are subject to modification and technical correction prior to official
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authoritative.
NO. COA06-807
NORTH CAROLINA COURT OF APPEALS
Filed: 17 April 2007
ALVIN B. BYRD,
Employee,
Plaintiff
v. North
Carolina Industrial Commission
I.C.
File No. 222823
ECOFIBERS, INC.,
Employer,
and
HARTFORD INSURANCE COMPANY,
Carrier,
Defendants.
Appeal by defendants from an opinion and award filed 20
March 2006 by the North Carolina Industrial Commission. Heard in the Court of
Appeals 7 March 2007.
Jones,
Hewson & Woolard, by Lawrence J. Goldman, for defendant appellants.
No
brief for appellees.
McCULLOUGH, Judge.
Alvin Byrd (“plaintiff”) appeals from the North Carolina
Industrial Commission’s (“the Commission”) opinion and award finding and
concluding that plaintiff has not reached maximum medical improvement;
plaintiff’s refusal to accept the employment offered by Ecofibers
(defendant-employer) was justified; and the proceedings were brought and
prosecuted without reasonable grounds
awarding temporary total disability compensation.
Plaintiff sustained an admittedly compensable injury by
accident on 8 March 2002 causing two compound fractures to the leg and a broken
ankle. Defendants began paying temporary total disability benefits on 9 March
2002. Plaintiff’s primary physician was Dr. Marvin Vice who performed multiple
surgical procedures on plaintiff to correct the fractures and delayed union of
the tibial fracture.
Defendants sent plaintiff to Dr. William Guideman for a
second opinion on 15 August 2002. Dr. Guideman determined that plaintiff had a
definite nonunion of the fracture site; and previous procedures had been
unsuccessful as evidenced by plaintiff’s inability to bear weight and the bone
healing in a manner which prevented impaction.
Dr. Guideman recommended additional surgery to correct the nonunion.
Defendants then sent plaintiff to a third orthopedic surgeon, Dr. James Sebold,
who reservedly concurred with a recommendation made by Dr. Vice that plaintiff
should use a bone stimulator to resolve the delayed union but further concluded
if plaintiff did not heal over the next couple of months that surgery would be
needed to correct the nonunion.
Plaintiff began using the bone stimulator as recommended but
the tibial fracture failed to unionize. Dr. Vice subsequently left his practice
and Dr. Cuce became the treating physician for plaintiff. On 11 March 2003, Dr.
Cuce released plaintiff to modified duty despite the continued nonunion of the
fracture and ongoing pain and discomfort. Dr. Cuce concluded that further use
of the bone stimulator would not unionize the fracture; that unionization could
only be brought about by surgery and a bone graft; that such surgery was
unnecessary; and despite ongoing pain and discomfort, plaintiff had reached
maximum medical improvement. Plaintiff was released to full-duty status on 22
April 2003.
Plaintiff was thereafter ordered to undergo a functional
capacity test on 13 May 2003. On 29 April 2003 defendant-employer notified
plaintiff that he was to contact defendant-employer by 5 May 2003 where he had
been released to full-duty work status. Plaintiff’s wife contacted
defendant-employer and informed them that plaintiff did not believe he was capable
of full-duty work and that he would not know the full extent of his work
limitations until he completed the functional capacity evaluation on 13 May
2003. One week prior to plaintiff’s functional capacity evaluation, plaintiff
was notified that defendant-employer no longer had a job available for him.
On 6 October 2003, defendants filed a Form 24 application to
suspend or terminate benefits based on plaintiff’s refusal to accept suitable
employment after being released to full-duty work status. The Commission
determined that plaintiff was justified in refusing the employment offered by
defendant-employer, and the instant
action was brought and prosecuted without reasonable grounds and awarded
temporary total disability compensation. Defendants appeal.
Defendants contend on appeal that the Commission erred in
concluding that plaintiff’s refusal to accept employment was justified.
Under the Worker’s Compensation Act it is the Commission
that performs the “ultimate fact-finding function” and not the appellate
courts. Adams v. AVX Corp., 349 N.C. 676, 680-81, 509 S.E.2d 411, 413
(1998), reh’g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). Therefore,
where the Commission’s findings are supported by competent evidence, they are
conclusive on appeal, Hedrick v. PPG Industries, 126 N.C. App. 354, 357,
484 S.E.2d 853, 856, disc. review denied, 346 N.C. 546, 488 S.E.2d 801,
801-02 (1997), and this Court “may set aside a finding of fact only if it lacks
evidentiary support.” Holley v. ACTS, Inc., 357 N.C. 228, 231, 581
S.E.2d 750, 752 (2003). Specifically, this Court may not weigh the evidence or
evaluate the credibility of witnesses, as “‘[t]he Commission is the sole judge
of the credibility of the witnesses and the weight to be given their
testimony.’” Adams, 349 N.C. at 680, 509 S.E.2d at 413 (citation
omitted). A finding of fact is conclusive and binding on appeal “so long as
there is some ‘evidence of substance which directly or by reasonable inference
tends to support the findings, . . . even though there is evidence that would
have supported a finding to the contrary.’” Shah v. Howard Johnson, 140
N.C. App. 58, 61-62, 535 S.E.2d 577, 580 (2000) (citation omitted), disc.
review denied, 353 N.C. 381, 547 S.E.2d 17 (2001).
“The burden is on the employer to show that plaintiff
refused suitable employment.” Gordon v. City of Durham, 153 N.C. App.
782, 787, 571 S.E.2d 48, 51 (2002). We have defined “‘suitable’ employment,” in
the context of N.C. Gen. Stat. §97-32, as “any job that a claimant ‘is capable
of performing considering his age, education, physical limitations, vocational
skills and experience.’” Shah, 140 N.C. App. at 68, 535 S.E.2d at 583
(citation omitted). Once the employer shows to the satisfaction of the
Commission that the employee was offered suitable work, the burden shifts to
the employee to show that his refusal was justified. See, e.g., Moore v.
Concrete Supply Co., 149 N.C. App. 381, 389-90, 561 S.E.2d 315, 320 (2002).
This Court has previously held that an employee’s own
testimony as to pain and ability to work is competent evidence as to the
employee’s ability to work. See Boles v. U.S. Air, Inc., 148 N.C. App.
493, 499, 560 S.E.2d 809, 813 (2002); Matthews v. Petroleum Tank Service,
Inc., 108 N.C. App. 259, 423 S.E.2d 532 (1992) (employee’s own testimony
concerning level of pain he suffered was competent evidence as to his ability
to work); Niple v. Seawell Realty & Insurance Co., 88 N.C. App. 136,
362 S.E.2d 572 (1987), (employee’s own testimony as to pain upon physical
exertion was competent evidence as to her ability to work), disc. review
denied, 321 N.C. 744, 365 S.E.2d 903 (1988).
Plaintiff testified that after Dr. Cuce released him to
full-duty work status he questioned his ability to do the work required by the
employment offered and wanted to wait until his functional capacity test
ordered by Dr. Cuce was performed before returning to work. Plaintiff testified
that, while he did not know his physical limitations at the time he was asked
to return to work, he knew that he could not perform full-duty work. Plaintiff
further testified that he was unable to stand on his leg for over three to four
hours and that if he does, he has trouble with the pain.
The functional capacity evaluation revealed that plaintiff
could return to light- to medium-duty work with limitations including no
climbing, and standing limited to three to four hours. While Dr. Cuce testified
that it was his opinion that plaintiff could return to full-duty work status,
he further admitted that he was only testifying as to physical capacity and
acknowledged that at the time of release plaintiff was in pain; but as he was
not a pain specialist, he could not testify as to the limitations such pain
would place on plaintiff’s ability to work.
Even though there was evidence from Dr. Cuce that plaintiff
reached maximum medical capacity and was able to return to full-duty work
status, there was also evidence that plaintiff perceived himself to be unable
to perform the tasks required by the employment offered and further wanted to
wait until he was certain of his physical limitations after undergoing the
functional capacity evaluation. Where there is competent evidence in the record
to support the findings and such findings support the conclusion of the
Commission, the assignment of error is overruled.
Defendants further contend the Commission erred in finding
and concluding that the hearing was brought and prosecuted without reasonable
grounds under N.C. Gen. Stat. §97-88.1.
Under N.C. Gen. Stat. §97-88.1, “[i]f the Industrial
Commission shall determine that any hearing has been brought, prosecuted, or
defended without reasonable ground, it may assess the whole cost of the
proceedings including reasonable fees for defendant’s attorney or plaintiff’s
attorney upon the party who has brought or defended them.” N.C. Gen. Stat.
§97-88.1 (2005). “Although the Commission’s decision to award attorney’s fees
under N.C. Gen. Stat. §97-88.1 is discretionary, ‘[w]hether the defendant had a
reasonable ground to bring a hearing is reviewable by this Court de novo.’” Hodges v. Equity Grp., 164 N.C. App.
339, 348, 596 S.E.2d 31, 37 (2004) (citation omitted). “This requirement
ensures that defendants do not bring hearings out of ‘stubborn, unfounded
litigiousness.’” Troutman v. White & Simpson, Inc., 121 N.C. App.
48, 51, 464 S.E.2d 481, 484 (1995) (citation omitted), disc. review denied, 343
N.C. 516, 472 S.E.2d 26 (1996).
The evidence presented in the instant case tended to show
that plaintiff sustained an injury to his leg and ankle. After numerous
surgical procedures, the bones in plaintiff’s leg failed to unionize.
Defendants requested that plaintiff receive a second opinion and that second
opinion revealed that in order to correct the injury and allow for unionization
of the bone, surgery was required. Unsatisfied with the opinion, defendants
requested that plaintiff receive a third opinion. The doctor rendering the
third opinion stated that a bone stimulator could possibly help unionize the
bone but that if it failed to do such, surgery would be required. At the time
plaintiff was released by Dr. Cuce to full-duty work status, defendants were
aware that plaintiff’s bones had failed to unionize. Defendants were further
aware that plaintiff was ordered to undergo a functional capacity evaluation
and that plaintiff was concerned about his ability to perform the duties
required by the offered employment and wanted to be certain of his physical
limitation before accepting the offered employment. However, defendants
terminated plaintiff’s offer of employment before plaintiff could receive a
functional capacity evaluation and subsequently filed a form to suspend or
terminate payment based on plaintiff’s failure to accept employment.
Based on the aforementioned facts, immediate litigation of
this case was certainly stubborn and unfounded. Therefore, this assignment of
error is overruled.
Accordingly, the opinion and award of the Commission is
affirmed.
Affirmed.
Judges BRYANT and LEVINSON concur.