All opinions are subject to modification
and technical correction prior to official publication in the
NO. COA08-371
Filed: 2 December 2008
DAVID M. JONES,
Employee/Plaintiff,
v.
I.C.
File No. 482062
MODERN CHEVROLET,
Employer,
and
BRENTWOOD SERVICES ADMINISTRATORS, INC.,
Servicing Agent,
Defendants.
Appeal
by Defendants from Opinion and Award entered 29 November 2007 by the North
Carolina Industrial Commission. Heard in
the Court of Appeals 23 September 2008.
Lewis &
Daggett, P.A., by Christopher M. Wilkie, for Plaintiff-Appellee.
Teague,
ARROWOOD,
Judge.
Modern
Chevrolet and Brentwood Services, Inc. (Defendants) appeal an Industrial
Commission Opinion and Award reversing the Opinion of a Deputy Commissioner and
awarding Plaintiff-Appellee temporary total disability and medical
benefits. We remand for additional
findings of fact.
Plaintiff,
who was born in 1955, has a high school education and training as an automobile
technician. In March 2004 he was hired
by Defendant as an automobile mechanic.
On 11 November 2004 Plaintiff caught his right foot in machinery and
suffered a compensable injury to his right knee. He was initially treated at
When
an MRI revealed a medial meniscus tear and other damage to his right knee,
Plaintiff’s treatment was transferred to orthopaedic surgeon Dr. David
Martin. Dr. Martin’s physicians’
assistant, Frank Caruso, recommended arthroscopic surgery on Plaintiff’s right
knee, and continued the light duty restrictions. On 10 February 2005 Plaintiff was examined by
Dr. Martin, to whom he reported left knee pain and the inability to bear weight
on his right knee. Dr. Martin
recommended arthroscopic surgery for Plaintiff’s right knee and a steroid
injection in his left knee. Dr. Martin
noted that if Plaintiff’s left knee continued to be painful then weight bearing
x-rays or an MRI might be appropriate.
On 16
February 2005 Plaintiff had arthroscopic surgery on his right knee, which
revealed extensive damage and complex tears to the tissues of his knee. Following surgery, Plaintiff was written out
of work. On 1 April 2005 he started
physical therapy, and on 11 April 2005 Caruso recommended that Plaintiff return
to work after several more weeks of physical therapy. Plaintiff returned to work on 25 April 2005
without work restrictions, although he was still being treated by Dr.
Martin. Plaintiff’s left knee pain
continued after he returned to work, and he received a second steroid injection
in May 2005. On 13 June 2005 Plaintiff
was examined by Dr. Martin, who noted that Plaintiff was suffering from pain
and swelling of his left knee. Dr.
Martin referred Plaintiff for a left knee MRI, but did not assign work
restrictions.
On 1
July 2005 Defendant terminated Plaintiff’s employment. The termination notice indicated that
Plaintiff was fired for poor workmanship on a recent brake repair. The next day, 2 July 2005, Plaintiff received
the results of his left knee MRI, revealing a tear to the medial meniscus and
other damage to the left knee. On 7 July
2005 Dr. Martin recommended left knee arthroscopic surgery. Defendants requested an independent medical
examination, and in August 2005 Plaintiff was examined by Dr. James Comadoll,
who concurred with Dr. Martin’s recommendation for surgery. On 27 September 2005 Plaintiff underwent a
left knee arthroscopic surgical procedure, which revealed a “large tear” in the
meniscus and other damage to his left knee.
In October 2005 Plaintiff was released to return to “sedentary work.” Plaintiff was evaluated in January 2006, and
Dr. Comadoll assigned Plaintiff a 20% permanent partial impairment rating to
his right leg, and a 15% permanent partial impairment rating to his left
leg. Dr. Martin examined Plaintiff’s
right knee only, and concurred with the 20% rating.
Defendants
initially accepted Plaintiff’s 11 November 2004 injury as compensable and he
received medical and disability benefits.
Defendants suspended Plaintiff’s disability benefits on 25 April 2005,
when he returned to work at full pay, and discontinued disability benefits when
Plaintiff was fired on 1 July 2005.
Defendants accepted Plaintiff’s left knee injury as compensable and
resumed disability payments effective 27 September 2005, the date of Plaintiff’s
knee surgery. On 28 October 2005
Plaintiff filed an Industrial Commission Form 33 Request for Hearing, seeking
disability benefits for the period between 1 July 2005 and 27 September
2005. Defendants denied Plaintiff’s
claim on the grounds that Plaintiff had been terminated for reasons unrelated
to his injury and had not been assigned work restrictions at the time he was
terminated. In April 2006 the case was
heard by Deputy Commissioner John DeLuca, who in February 2007 issued an
Opinion and Award denying Plaintiff’s claim for 1 July to 27 September 2005
disability benefits. Plaintiff appealed
to the Full Commission, which issued its Opinion and Award on 29 November
2007. The Commission awarded Plaintiff
medical benefits and temporary total disability from 1 July 2005 until further
order of the Commission. From this
Opinion, Defendants have appealed.
Standard
of Review
“Appellate
review of an opinion and award from the Industrial Commission is generally
limited to determining: ‘(1) whether the findings of fact are supported by
competent evidence, and (2) whether the conclusions of law are justified by the
findings of fact.’” Hassell v. Onslow
Cty. Bd. of Educ., 362 N.C. 299, 305, 661 S.E.2d 709, 714 (2008) (quoting Clark
v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005)). “The Commission’s findings of fact ‘are
conclusive on appeal when supported by competent evidence even though’ evidence
exists that would support a contrary finding.”
Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 705,
599 S.E.2d 508, 512 (2004) (quoting Hilliard v. Apex Cabinet Co., 305
N.C. 593, 595, 290 S.E.2d 682, 684 (1982)).
However, the “Commission’s conclusions of law are reviewed de novo.” McRae v. Toastmaster, Inc., 358 N.C.
488, 496, 597 S.E.2d 695, 701 (2004) (citations omitted).
_____________________
Defendants
argue that the Commission erred by “applying a Seagraves analysis.” The Seagraves test, first articulated
by this Court in Seagraves v. Austin Co. of Greensboro, 123 N.C.
App. 228, 472 S.E.2d 397 (1996), guides the Commission in deciding whether
termination of an injured employee bars him from receiving disability benefits.
“[T]he
term ‘disability’ in the context of workers’ compensation is defined as the ‘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.G.S. §97-2(9) [(2007).] Consequently, a determination of whether a
worker is disabled focuses upon impairment to the injured employee’s earning
capacity rather than upon physical infirmity.”
Johnson, 358 N.C. at 707, 599 S.E.2d at 513 (citing Peoples v.
Cone Mills Corp., 316 N.C. 426, 434-35, 342 S.E.2d 798, 804 (1986)).
A
totally disabled employee is entitled to weekly compensation under N.C. Gen.
Stat. §97-29 (2007), and a partially disabled claimant may receive benefits
under N.C. Gen. Stat. §97-30 (2007).
However, N.C. Gen. Stat. §97-32 (2007), provides that:
If an injured employee refuses employment
procured for him suitable to his capacity he shall not be entitled to any
compensation at any time during the continuance of such refusal, unless in the
opinion of the Industrial Commission such refusal was justified.
“Our appellate
decisions have defined ‘suitable’ employment to be any job that a claimant ‘is
capable of performing considering his age, education, physical limitations,
vocational skills, and experience.’” Shah
v. Howard Johnson, 140 N.C. App. 58, 68, 535 S.E.2d 577, 583 (2000) (quoting
Burwell v. Winn-Dixie Raleigh, 114 N.C. App. 69, 73, 441 S.E.2d 145, 149
(1994)).
This
Court has held that refusal to accept suitable employment may be actual or
constructive. “The constructive refusal
defense is an argument that the employee’s inability to earn wages at pre-injury
levels is no longer caused by his injury; rather, the employer argues, the
employee’s misconduct is responsible for his inability to earn wages at pre-injury
levels. Because it is the employer who
seeks to discontinue disability payments on this basis, the employer has the
initial burden of showing that the employee actually engaged in the misconduct.” Williams v. Pee Dee Electric Membership
Corp., 130 N.C. App. 298, 301, 502 S.E.2d 645, 647 (1998).
“In Seagraves
the Court of Appeals examined the question of whether an employee can be deemed
to have refused suitable employment, thereby precluding injury-related
benefits, if she is terminated for misconduct that is unrelated to her
workplace injuries.” McRae, 358
N.C. at 493, 597 S.E.2d at 698. In McRae,
the North Carolina Supreme Court adopted the Seagraves test:
[T]he test serves to protect injured
employees from unscrupulous employers who might fire them in order to avoid
paying [benefits, and] . . . serves employers as a shield against injured
employees who engage in unacceptable conduct while employed in rehabilitative
settings. . . . [If] the former employee
is a victim of job-related injuries, the original employer remains responsible
for benefit obligations arising out of the employee’s job-related injury[.] . .
. [I]f the terminated-for-misconduct
employee fails to show by the greater weight of the evidence that his or her
inability to find or perform comparable employment is due to the employee’s
work-related injuries, the employer is then freed of further benefit
responsibilities.
McRae, 358 N.C. at 494-95, 597 S.E.2d at 699-700. The Court summarized the principles
underlying its holding:
The test in Seagraves is intended
to weigh the actions and interests of employer and employee alike. Ultimately, the Seagraves rule aims to
provide a means by which the Industrial Commission can determine if the
circumstances surrounding a termination warrant preclusion or discontinuation
of injury-related benefits. As such, we
conclude that this test is an appropriate means to decide cases of this nature.
Id. at 495, 597 S.E.2d at 700. Thus, the Seagraves test was
originally developed to address the issue of “whether an employee, who is
disabled as a result of a compensable injury and is provided with light duty
employment by the employer, constructively refuses the light duty work and
forfeits workers’ compensation benefits . . . upon termination of the
employment for fault or misconduct unrelated to the compensable injury.” Seagraves, 123 N.C. App. at 230, 472
S.E.2d at 399.
Plaintiff
was released to return to work without restrictions. Defendants argue that, as a matter of law,
this precludes the application of the Seagraves test. Plaintiff, however, urges that his work was
in the “nature” of rehabilitative employment.
The issue is whether application of the Seagraves analysis was
appropriate on the facts of this case.
The
Commission has previously applied the Seagraves test in cases where the
plaintiff did not have work restrictions.
For example, in Hogan v. Terminal Trucking Co., __ N.C. App. __,
660 S.E.2d 911, 913 (2008), the plaintiff was involved in a May 2004 truck
accident and was terminated pursuant to company policy. He was released to return to work without
restrictions on 12 August 2004.
Plaintiff appealed from the Commission’s ruling that Plaintiff was not
entitled to disability after this date.
On appeal, he argued that the Commission erred by concluding that “defendant-employer
terminated the plaintiff for misconduct or fault unrelated to the compensable
injury, for which a non-disabled employee would ordinarily have been
terminated.” This Court did not directly
address the use of the Seagraves test, but its Opinion upheld the
Commission’s findings and conclusions on the issue, notwithstanding the
Commission’s use of the Seagraves test.
Plaintiff’s
situation bears some similarities to that of a claimant who returns to work
under light duty restrictions and is later terminated. Plaintiff’s position required standing,
squatting, kneeling, pushing, pulling, and lifting up to 100 pounds. When Plaintiff returned to work on 25 April
2005 he was still being treated for his right knee injury. His left knee injury was not resolved when he
returned to work, and between 25 April 2005 and 1 July 2005 Plaintiff continued
to experience pain and difficult movement in his left knee. In May he received a steroid injection in his
left knee. On 13 June 2005 Plaintiff
reported left knee pain to Dr. Martin, who recommended an MRI. On 2 July 2004 MRI results showed significant
damage to Plaintiff’s left knee, which his treating physicians agreed was
causally related to his right knee injury.
Thus, treatment of Plaintiff’s left knee injury extended Defendants’s
obligation to pay workers’ compensation benefits beyond the date that Plaintiff
returned to work, arguably placing Plaintiff in the vulnerable position
discussed in Toastmaster:
[A] rule that would allow employers to
evade benefit payments simply because the recipient-employee was terminated for
misconduct could be open to abuse. Such
a rule could give employers an incentive to find circumstances that would
constitute misconduct by employees who were previously injured on the job.
McRae, 358 N.C. at 495, 597 S.E.2d at 700.
However,
although the record evidence might have supported a decision by the Commission
to apply the Seagraves test, we cannot resolve this issue because the
Commission failed to make the necessary findings or conclusions to explain why
it applied Seagraves to this case.
Further,
because Plaintiff returned to work at his full salary and without work
restrictions, there is no presumption of continuing disability after he was
terminated. Again, the record contains
evidence that might support a finding of disability. For example, in Britt v. Gator Wood, Inc.,
185 N.C. App. 677, 682, 648 S.E.2d 917, 921 (2007), the plaintiff returned to
work without restrictions, but an MRI later revealed a torn meniscus requiring
surgery. On appeal, the defendant argued
that “since plaintiff had not yet been written out of work or assigned any work
restrictions, he has not proven that he was disabled” before the date he
obtained an MRI. This Court held that
the Commission could “reasonably draw the inference that plaintiff’s condition
on 1 June 2002 was the same as his condition a mere two weeks later on 17 June
2002[.]” Similarly, the day after the
instant Plaintiff was terminated he was determined to have significant damage
to his left knee, requiring surgery.
However, the Commission failed to make findings and conclusions
regarding Plaintiff’s disability between 1 July and 27 September 2004.
“There
are no findings of fact as to medical evidence, evidence of reasonable efforts
to obtain employment, or evidence of the futility of plaintiff’s seeking
employment. . . . Because the Commission’s
findings of fact are insufficient to enable this Court to determine plaintiff’s
right to compensation, this matter must be remanded for proper findings on this
issue.” Silva v. Lowe’s Home
Improvement, 176 N.C. App. 229, 237, 625 S.E.2d 613, 620 (2006) (citations
omitted).
Moreover,
certain of the Commission’s purported findings of fact are summaries or
recitations of witness testimony, rather than actual findings of fact. These include the following:
19. Upon a return appointment to Dr. Martin
on June 13, 2005, Plaintiff was noted to have crepitus, or grinding, in his
right knee, as well as popping, weakness and a small amount of right knee
swelling. Dr. Martin also noted that
Plaintiff had a moderate effusion in the left knee, tenderness over the inside
of the knee on the medial joint line over the medial meniscus, and grinding in
the front of the left knee. Dr. Martin
also directly related the left knee problems to the original work injury and
the overcompensation on the left side due to the problems on the right side. As a result, Plaintiff was referred for a
left knee MRI. Dr. Martin noted that
Plaintiff was working ‘full duty’ but did not give any work restrictions at
that time.
. . .
.
21. Plaintiff was terminated by Defendant-Employer
on July 1, 2005. . . . [The termination notice] states that Plaintiff was
terminated for poor workmanship on a repair job to a brake fluid supply line[.]
. . . Defendant-Employer’s service manager Jeff Keith testified that Plaintiff
was terminated for overcharging the customer on that same work job and for the
workmanship. Mr. Keith also testified
that . . . at least one other employee who also worked on that same vehicle
overcharged for services and was not terminated. Finally, Mr. Keith testified that Plaintiff’s
personnel file contained no complaint for poor performance . . . other than the
alleged break repair incident on June 25, 2005.
22. Regarding the repair job on June 25,
2005, for which he was terminated, Plaintiff testified that he performed the
standard, appropriate service repairs and tests to that same vehicle, as needed
and required, and that following the post-repair test drive, no fluid drippage
occurred. Plaintiff testified that if
fluid drippage occurred after the test drive, it is reparable at no additional
cost to the customer, and that he would have repaired the supply line again if
drippage had occurred after the test drive.
Plaintiff further testified that his co-workers were shocked that he was
terminated for such a reason because that is not a reason typically given for
termination in the car maintenance industry.
“This
Court has long held that findings of fact must be more than a mere
summarization or recitation of the evidence and the Commission must resolve the
conflicting testimony.” Lane v.
American Nat’l Can Co., 181 N.C. App. 527, 531, 640 S.E.2d 732, 735 (2007)
(citing Hansel v. Sherman Textiles, 304 N.C. 44, 59, 283 S.E.2d 101, 109
(1981)) (other citations omitted). “‘[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.’” Winders v.
Edgecombe County Home Health Care, __ N.C. App. __, __, 653 S.E.2d 575, 579
(2007) (quoting In re Green, 67 N.C. App. 501, 505 n. 1, 313 S.E.2d 193,
195 (1984)).
“While
the Commission is not required to make findings as to each fact presented by
the evidence, it must find those crucial and specific facts upon which the
right to compensation depends so that a reviewing court can determine on appeal
whether an adequate basis exists for the Commission’s award.” Johnson, 358 N.C. at 705, 599 S.E.2d
at 511 (citations omitted). “Where the
findings are insufficient to enable the court to determine the rights of the
parties, the case must be remanded to the Commission for proper findings of
fact.” Lawton v. County of Durham,
85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987). “On remand, the Commission may reopen the
proceedings to take additional evidence if it determines on the record that
there is insufficient evidence[.]” Calloway
v. Shuford Mills, 78 N.C. App. 702, 709, 338 S.E.2d 548, 553 (1986).
For the reasons stated above, we
remand the instant matter to the Full Commission for findings and conclusions
consistent with this opinion.
Remanded
Judge
BRYANT concurs.
Judge
WYNN dissents by separate opinion.
NO. COA08-371
NORTH CAROLINA COURT OF APPEALS
Filed: 2 December 2008
DAVID M. JONES,
Employee/Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 482062
MODERN CHEVROLET,
Employer,
and
BRENTWOOD SERVICES ADMINISTRATORS, INC.,
Servicing Agent,
Defendants.
WYNN,
Judge, dissenting.
The
issue on appeal is whether the Industrial Commission was correct in finding and
concluding that Defendants failed to demonstrate that Plaintiff’s loss of, or
diminution in, wages was attributable to his own wrongful act, resulting in the
loss of his employment, and not due to his work-related disability. Seagraves v. Austin Co. of Greensboro,
123 N.C. App. 228, 234, 472 S.E.2d 397, 401 (1996). Contrary to the majority opinion, I would
reach the threshold issue of whether the Industrial Commission appropriately
applied Seagraves, concluding that Plaintiff was wrongfully terminated
and is entitled to receive temporary total disability compensation. Finding that the Commission’s application of
the Seagraves analysis was proper, I would affirm the Commission’s
decision.
In Seagraves,
this Court established a test for determining whether an injured employee’s
right to continuing workers’ compensation benefits, after being terminated for
misconduct, is appropriate. Id. Thereafter, our Supreme Court adopted the
Seagraves analysis, stating:
[U]nder the Seagraves’ test, to
bar payment of benefits, an employer must demonstrate initially that: (1) the employee was terminated for
misconduct; (2) the same misconduct would have resulted in the termination of a
nondisabled employee; and (3) the termination was unrelated to the employee’s
compensable injury.
McRae v.
Toastmaster, Inc., 358
N.C. 488, 493, 597 S.E.2d 695, 699 (2004) (citation omitted).
The
majority appears to intertwine two separate analyses: (1) Did the Commission
properly apply Seagraves? (2) If not, is the conclusion that Plaintiff
is entitled to receive temporary total disability compensation justified by the
Commission’s findings of fact? The
majority concludes that “the Commission failed to make the necessary findings
or conclusions to explain why it applied Seagraves to this case.” However, after careful review of the record,
I conclude that the findings made by the Commission support its application of Seagraves.
On
review of the case law, there are a number of workers’ compensation cases in
which our courts have applied the Seagraves analysis without making a
specific finding that plaintiff-employee was on light or rehabilitative duty
prior to his termination. In Flores
v. Stacy Penny Masonry Co., 134 N.C. App. 452, 518 S.E.2d 200 (1999), the
Court upheld the Industrial Commission’s decision, which applied the Seagraves
inquiry and found that plaintiff was not barred from receiving disability
benefits after being terminated. In Flores,
the plaintiff sustained a compensable injury on 9 April 1992, returned to work
on 9 June 1992 without modification, and periodically missed work at the
direction of his physician until 16 April 1993, when he was terminated. The Court held, “pursuant to our decision in Seagraves,
123 N.C. App. 228, 472 S.E.2d 397, the Commission’s findings supported its
conclusion that plaintiff was not barred from receiving disability benefits
after 16 April 1993.” Flores, 134
N.C. App. at 459, 518 S.E.2d at 205. See
also Workman v. Rutherford Elec. Membership Corp., 170 N.C. App.
481, 613 S.E.2d 243 (2005) (applying Seagraves without requiring a
finding of light duty or rehabilitative employment where an employee was fired
for periodically missing work due to accident-related symptoms).
Further,
our Supreme Court has explained the underlying purpose of the Seagraves
analysis, stating:
On the one hand, the test serves to
protect injured employees from unscrupulous employers who might fire them in
order to avoid paying them their due benefits. On the other hand, according to
the lower court, the test simultaneously serves employers as a shield against
injured employees who engage in unacceptable conduct while employed in
rehabilitative settings.
McRae, 358 N.C. at 494, 597 S.E.2d at
699. The Court’s opinion in McRae illustrates
the intention behind the Seagraves analysis: to adopt an inquiry that
carefully balances the interest of protecting injured employees who return
to work in particularly vulnerable positions while also guarding against
potential defendant-employer abuse.
Arguably, given this Court’s decision in Flores and the rationale
articulated in McRae, the determinative issue is whether the employee,
who is urging the application of Seagraves, was in the type of
vulnerable position the analysis was originally adopted to protect.
Here,
while the Commission concluded that Plaintiff’s “job was not modified in any
way and he did not work under any restrictions,” it also concluded that, under Seagraves,
Defendants “failed to show that plaintiff was terminated for misconduct[,] . .
. that the same misconduct would have resulted in the termination of a non-disabled
employee, and that the termination was unrelated to her compensable injury.” Drawing from the majority opinion, there is
competent evidence in the record to support the finding that the Plaintiff was
in a position similar to, if not the same as, rehabilitative or light-duty
employment prior to his termination. As
the majority states, Plaintiff’s position required a significant amount of “standing,
squatting, kneeling, pushing, pulling and lifting up to 100 pounds.” Yet, when Plaintiff returned to work, he was
still being treated for his injury.
Further, Dr. Martin, his treating physician, testified that the “plan
was to return him to work, see him back two to three months later to evaluate
his knee, and consider placing him at maximum medical improvement” at a later
date.
Given
the Plaintiff’s vulnerable status at the time he returned to work and the
evidence in the record suggesting Plaintiff was still being treated for his
injury, I conclude that the application of Seagraves was proper and the
Commission’s decision should therefore be affirmed.