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authoritative.
No. COA07-372
NORTH CAROLINA COURT OF APPEALS
FILED: 19 February 2008
HARRY B. GRAHAM,
Employee,
Plaintiff,
v. North Carolina Industrial Commission
I.C.
Nos. 226275 & 226281
MASONRY REINFORCING CORP. OF
AMERICA,
Employer,
and
ATLANTIC MUTUAL INSURANCE
COMPANY,
Carrier,
Defendants.
Appeal by defendants from the Opinion and Award entered 31
October 2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 October
2007.
Bollinger &
Piemonte, PC by Bobby L. Bollinger, Jr. for plaintiff-appellee.
Hedrick,
Eatman, Gardner & Kincheloe, L.L.P. by Shannon P. Metcalf and M. Duane
Jones for defendant-appellants.
Stroud,
Judge.
Defendant appeals opinion and award by the Full
Commission. Defendant contends the Full
Commission erred by concluding plaintiff was disabled after 17 December 2001
and finding plaintiff’s termination was not due to an economic downturn and
plaintiff’s misconduct, and by concluding plaintiff’s back condition was
compensable. For the following reasons,
we affirm in part and remand in part.
I. Background
In May of 2000, plaintiff began working for defendant
Masonry Reinforcing Corp. of America (“Masonry”) as a cost accountant. Plaintiff’s job “required him to prepare
cost accounting reports for upper management[,] . . . go out into the
manufacturing facilities and observe production, take inventories, [and] obtain
data from machines[.]” On 6 February
2001, plaintiff tripped over a forklift barrier. Plaintiff lost his balance and fell against a golf cart striking
his lower back and left hip. Plaintiff
had immediate intense pain in his left hip, buttock, leg, and lower back, but
he “walked it off and returned to work.”
Plaintiff reported this incident to his supervisor who indicated that he
would fill out an accident report.
Plaintiff went to the Veterans’ Administration Hospital and was diagnosed
with avascular necrosis in the left hip.
Plaintiff did not fill out a written accident report for his injury
until 6 July 2001 because of his supervisor’s earlier indication that he would
be filing a report.
On 31 August 2001, plaintiff stepped into a pool of spilled
fluid and slipped, “causing his right leg to go out from under him.” “[T]he incident exacerbated his pre-existing
hip, leg and back condition” stemming from his February injury. On 26 September 2001, Masonry’s chief
financial officer, Mark McClure (“McClure”), decided to terminate
plaintiff. McClure claimed the
termination was because of economics and poor job performance. Masonry paid plaintiff through 15 October
2001, and on 16 October 2006 plaintiff had “hip replacement surgery due to his
avascular necrosis[.]” After surgery, “[p]laintiff was restricted to lifting no
more than 10 pounds, no bending, no stooping,” and to changing positions every
30 minutes. On 17 December 2001,
approximately eight weeks after surgery, plaintiff began to look for a new job
and continued to until October of 2004 when he began receiving Social Security
Disability benefits.
Plaintiff filed Form 18, “Notice of Accident to Employer and
Claim of Employee, Representative, or Dependant”, with the Industrial Commission
for each of his two accidents. Masonry
filed Form 19, “Employer’s Report of Employee’s Injury or Occupational Disease
to the Industrial Commission”, denying the claim because “the employee was not
injured within the course and scope of his employment.” Plaintiff filed Form 33, requesting that his
claim be assigned for a hearing.
Plaintiff requested payment for compensation for days missed, medical
expenses/treatment, permanent partial disability, scars, post operative care,
and rehabilitation expenses. Masonry
responded to plaintiff’s request for a hearing with Form 33R and denied
compensability for the claim because it was not an injury by accident and it
did not arise out of and in the course of employment.
On or about 10 February 2006, Deputy Commissioner Phillip A.
Holmes ordered defendants to pay plaintiff, inter alia, $588.00 per week
from 16 October 2001 through 17 December 2001 in a lump sum and “for all medical treatment received by
[p]laintiff for his left hip as a result of his compensable injuries” in
February and August of 2001 “for so long as said treatment effects a cure,
gives relief or lessens [p]laintiff’s period of disability.” Plaintiff appealed to the Full Commission.
On 31 October 2006, the Full Commission by Commissioner Bernadine
S. Ballance awarded plaintiff, inter alia, $588.00 per week from 16
October 2001 through 31 October 2004 in a lump sum and “for all medical
expenses incurred or to be incurred in the future by [p]laintiff for his left
hip and back for so long as such treatment is reasonably required to effect a
cure, provide relief and lessen his disability[.]” Defendants appeal.
Defendants present two issues before this Court: (1) Whether
the Industrial Commission erred in finding plaintiff disabled after 17 December
2001 and in awarding him temporary total indemnity benefits until 31 October
2001, and (2) whether the Industrial Commission erred in finding plaintiff’s
back condition compensable and ordering defendants to pay for back treatment.
II. Standard of Review
Our review of the Commission’s opinion and award is limited
to determining whether competent evidence of record supports the findings of
fact and whether the findings of fact, in turn, support the conclusions of law.
If there is any competent evidence supporting the Commission’s findings of
fact, those findings will not be disturbed on appeal despite evidence to the
contrary. However, the Commission’s
conclusions of law are reviewed de novo.
Rose
v. City of Rocky Mount, 180 N.C. App. 392, 395, 637 S.E.2d 251, 254
(2006) (internal citations and internal quotations omitted), disc. rev.
denied, 361 N.C. 356, 644 S.E.2d 232 (2007).
III. Proof of
Disability and Reason for Termination
Defendants first argue that the Industrial Commission erred
in finding that plaintiff was disabled after 17 December 2001 and in awarding
temporary total indemnity benefits until 31 October 2004. Specifically,
defendants contend (1) plaintiff did not prove his work-related disability for
any time after 17 December 2001, and (2) plaintiff’s termination was due to an
economic downturn and plaintiff’s personal misconduct; thus plaintiff is not
entitled to further indemnity benefits beyond 17 December 2001.
A. Proof of Disability
“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) (2001). Our Supreme
Court has stated that
in 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. In workers’ compensation cases,
a claimant ordinarily has 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)
(internal citations omitted). This
Court has stated a claimant may prove the first two prongs of Hilliard
through
(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. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457
(1993) (internal citations omitted).
The Industrial Commission found as fact that plaintiff
looked for
suitable employment on his own by submitting more than one hundred applications
for jobs he felt he was qualified and able to perform. He sought jobs through the Employment
Security Commission, newspapers and other leads. The job search resulted in three interviews and no offers of
employment.
The Industrial Commission concluded that
[a]s of
December 17, 2001, [p]laintiff was ready to begin an effort to return to work
and he commenced a reasonable job search effort until he began receiving Social
Security Disability benefits ‘the last of October 2004,’ and stopped looking
for employment. Without vocational assistance from [d]efendants, [p]laintiff
looked for suitable employment on his own by submitting more than one hundred
applications for jobs he felt he was qualified and able to perform. He sought jobs through the Employment
Security Commission, newspapers and other leads. The job search resulted in three interviews and no offers of
employment. Although highly educated,
[p]laintiff’s advanced age; physical restrictions due to his injury; and health
condition, including severe chronic pain syndrome, hypertension, disc disease,
arthritis, depressive disorder and a number of other conditions diminished his
employment opportunities. Therefore,
[p]laintiff has proven disability under the second prong of Russell.
Based upon competent evidence, including plaintiff’s
testimony and documentation of the numerous jobs plaintiff had inquired into
after his hip replacement surgery until his Social Security Disability began,
the Industrial Commission found that plaintiff had proven his disability by
showing 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[.]” Russell at 765, 425 S.E.2d at 457; see
Hilliard at 595, 290 S.E.2d at 683.
From these facts the Industrial Commission could properly conclude that
plaintiff had proven his disability as the evidence presented by plaintiff
about his job search showed that he was incapable of earning the same wages he
had earned in the same or other employment.
See Hilliard at 595, 290 S.E.2d at 683. The evidence, including plaintiff’s testimony, also showed that
plaintiff’s incapacity to earn was causally related to his physical restrictions
from the hip injury. Cf. Fletcher v.
Dana Corp., 119 N.C. App. 491, 497, 459 S.E.2d 31, 35, disc. rev. denied,
342 N.C. 191, 463 S.E.2d 235 (1995) (noting that without a work-related injury,
an employee would not have been “unemployed and suffered wage loss”).
B. Economic Downturn
Defendants rely on Segovia v. J.L. Powell & Co.,
where a plaintiff-employee had compensable injuries and was subsequently laid
off. 167 N.C. App. 354, 354-55, 608
S.E.2d 557, 557-58 (2004). The
Industrial Commission found as fact that
[h]ad it not
been for the reduction in business associated with the company-wide layoffs due
to the economic downturn, [plaintiff] would have returned to work for
defendant-employer . . . . The greater
weight of the evidence establishes that the plaintiff’s inability to earn wages
since March 2001 was due to the layoff and plaintiff’s lack of interest in
returning to work, and not due to any disability associated with plaintiff’s
injury.
Id. at 356, 608
S.E.2d at 558-59 (emphasis added). This
Court further stated:
These findings
support the full Commission’s conclusion that plaintiff’s earning capacity is
not currently affected by the injuries he suffered to his back and ear. Therefore, we conclude that the full
Commission did not err in concluding that plaintiff is not currently
disabled as a result of his injuries and thus, in denying plaintiff further
compensation.
Id. at 357, 608
S.E.2d at 559 (emphasis added).
This Court
[citing Segovia] has [also] held that the Full Commission did not err in
denying an employee benefits under the Workers’ Compensation Act where the
employee was physically able to perform his former job and the employee’s
inability to earn wages was due to a layoff resulting from a downturn in the
economy and the employee’s lack of interest in returning to work.
Eudy
v. Michelin North America, Inc., ___ N.C. App. ___, ___, 645 S.E.2d 83, 89, disc.
rev. denied, 361 N.C. 426, 648 S.E.2d 211 (2007) (emphasis added) (citing Segovia,
167 N.C. App. 354, 356-67, 608 S.E.2d 557, 558-59).
However, the facts of Segovia are quite different
from this case as in Segovia the Industrial Commission found that
plaintiff was “physically capable of performing his regular job with
defendant-employer . . . except for two very short periods[.]” See Segovia at 356, 608 S.E.2d at
558. In the case at bar we have already
concluded that the Industrial Commission could properly and did find that
plaintiff was disabled for some time after his termination. As this Court stated in Britt v. Gator
Wood, Inc.,
Defendants have
focused on the wrong issue. While the
immediate cause of the loss of plaintiff’s wages . . . may have been the
lay-off, that fact does not preclude a finding of disability. As Peoples v. Cone Mills Corp., 316
N.C. 426, 437, 342 S.E.2d 798, 805 (1986) explained, an injured employee’s
earning capacity is determined by the employee’s own ability to compete in the
labor market. Thus, the fact that
plaintiff was laid off does not preclude a finding of total disability if,
because of plaintiff’s injury, he was incapable of obtaining a job in the
competitive labor market.
Britt
v. Gator Wood, Inc., ___ N.C. App. ___, ___, 648 S.E.2d 917, 921
(2007) (internal quotations and ellipses omitted). Thus, even assuming arguendo that plaintiff was terminated
for an economic downturn, this would not preclude a finding that plaintiff was
disabled and thus eligible to receive indemnity benefits during the term of his
disability.[Note 1] See id.
at ___, 648 S.E.2d at 921.
C. Misconduct
[W]e hold that where
an employee, who has sustained a compensable injury and has been provided light
duty or rehabilitative employment, is terminated from such employment for
misconduct or other fault on the part of the employee, such termination does
not automatically constitute a constructive refusal to accept employment so as
to bar the employee from receiving benefits for temporary partial or total
disability. Rather, the test is whether
the employee’s loss of, or diminution in, wages is attributable to the wrongful
act resulting in loss of employment, in which case benefits will be barred, or
whether such loss or diminution in earning capacity is due to the employee’s
work-related disability, in which case the employee will be entitled to
benefits for such disability. Therefore, in such cases the employer must first
show that the employee was terminated for misconduct or fault, unrelated to the
compensable injury, for which a nondisabled employee would ordinarily have been
terminated.
Seagraves
v. Austin Co. of Greensboro, 123 N.C. App. 228, 233-34, 472 S.E.2d 397, 401
(1996).
Here the Industrial Commission found as fact that “[t]he
greater weight of the evidence establishes that [p]laintiff’s job performance
was satisfactory and the Full Commission gives little weight to testimony
indicating that [p]laintiff was terminated for poor job performance.” The evidence showed that plaintiff had
received positive feedback from his supervisor regarding his work performance
and that Masonry was aware of his worker’s compensation claims at the time of
his termination; this supports the Industrial Commission’s finding of fact that
plaintiff’s “job performance was satisfactory” which in turn supports the
conclusion of law that “[p]laintiff’s termination was not due to misconduct.” See Rose at 395, 637 S.E.2d at 254.
We therefore find that the Industrial Commission did not err in finding that plaintiff was entitled to indemnity benefits after 17 December 2001.
IV. Plaintiff’s Back
Condition
Lastly, defendants contend the Industrial Commission erred
in determining that plaintiff’s back condition was compensable and ordering
defendants to pay for back treatment because plaintiff did not prove “his back
condition is causally related to the hip injury or that it definitively arose
from the two incidents in question[.]”
Defendants argue that the Full Commission’s finding of fact regarding
plaintiff’s back was not enough to support its conclusions of law regarding
defendants paying for the treatment of plaintiff’s back.
The Full Commission found as fact that
[i]n addition
to his avascular necrosis, the Full Commission finds that [p]laintiff also
suffered back pain as a result of his fall on February 6, 2001. The physicians treating [p]laintiff have not
recommended any invasive treatment for the back injury and the narcotic pain
medication that he takes from the hip pain appears to address the back pain as
well.
The
Full Commission concluded as law that
[p]laintiff has
proven by the greater weight of the evidence that as a result of his accidents
on February 6, 2001 and on August 31, 2001, he developed disabling avascular
necrosis of the left hip and back pain.
N.C. Gen. Stat. §97-2.
[and that]
[p]laintiff is entitled to have [d]efendants pay for medical treatment for his
injury to his left hip and back, for so long as such treatment is reasonably
required to effect a cure, provide relief and lessen his disability. N.C. Gen. Stat. §§97-2(19), 97-25.
However,
[w]hile the commission is not required to make findings as
to each fact presented by the evidence, it is required to make specific
findings with respect to crucial facts upon which the question of plaintiff’s
right to compensation depends. Smith v. Construction Co., 27 N.C. App.
286, 218 S.E.2d 717 (1975). If the findings of fact of the commission are
insufficient to enable the court to determine the rights of the parties upon
the matters in controversy, the proceeding must be remanded to the commission
for proper findings of fact. Young v. Whitehall Co., 229 N.C. 360, 49
S.E.2d 797 (1948). As stated in Thomason v. Cab Co., 235 N.C. 602,
605-[0]6, 70 S.E.2d 706, 709 (1952):
‘The findings of fact of the Industrial Commission should
tell the full story of the event giving rise to the claim for compensation.
They must be sufficiently positive and specific to enable the court on appeal
to determine whether they are supported by the evidence and whether the law has
been properly applied to them. It is
likewise plain that the court cannot decide whether the conclusions of law and
the decision of the Industrial Commission rightly recognize and effectively
enforce the rights of the parties upon the matters in controversy if the
Industrial Commission fails to make specific findings as to each material fact
upon which those rights depend.’
Gaines
v. Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859
(1977) (ellipses omitted).
In the present case, the Full Commission has not only failed
to make findings of fact as to the causation of plaintiff’s back pain, but it
has also failed to make a finding as to the medical condition of plaintiff’s
back. In order for a reviewing court to
determine whether plaintiff’s back treatment is compensable we must know
whether there is evidence that the medical condition causing plaintiff’s back
pain was caused by his workplace injury; this cannot be done without a finding
that plaintiff actually has a back condition or any other medical condition
that would create pain in his back.
Therefore, we remand this case for further findings as to the actual
condition which created plaintiff’s back pain and whether that condition is
causally linked to plaintiff’s workplace injury. See id.
V. Conclusion
As to the determination that plaintiff did prove his disability and his termination was not due to an economic downturn or misconduct, we affirm. As to the determination that plaintiff’s back pain was compensable we remand with instructions for the Full Commission to make further findings of fact and conclusions of law.
AFFIRMED IN PART AND REMANDED IN PART.
Judges TYSON and JACKSON concur.
NOTE
1. Defendants also argue it was error
for the Industrial Commission not to make a specific finding of fact and
conclusion of law as to the economic downturn as the Industrial Commission “is
required to make specific findings with respect to crucial facts upon which the
question of plaintiff’s right to compensation depends.” Gaines v. Swain & Son, Inc.,
33 N.C. App. 575, 579, 235 S.E.2d 856, 859 (1977). However, as we have previously stated, the economic downturn is
not a “crucial fact” in light of a proper finding that plaintiff was
disabled. See Gaines at 579, 235
S.E.2d at 859.