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IN THE SUPREME COURT OF NORTH CAROLINA
No. 514A02
FILED: 13 AUGUST 2004
WILLIE B. JOHNSON,
Employee
v.
SOUTHERN TIRE SALES AND SERVICE,
Employer,
CASUALTY RECIPROCAL EXCHANGE,
Carrier
Appeal
pursuant to N.C.G.S. §7A-30(2) from the decision of a divided panel of the
Court of Appeals, 152 N.C. App. 323, 567 S.E.2d 773 (2002), affirming an opinion
and award entered 6 February 2001 by the North Carolina Industrial Commission.
Heard in the Supreme Court 7 April 2003.
Schiller
& Schiller PLLC, by Marvin Schiller and David G. Schiller, for
plaintiff-appellee.
Young
Moore and Henderson P.A., by Joe E. Austin, Jr., and Dawn Dillon Raynor, for
defendant-appellants.
EDMUNDS,
Justice.
This
case arises from proceedings before the North Carolina Industrial Commission
(the Commission) and raises the issue of whether the Commission erred in
awarding Willie B. Johnson (plaintiff) ongoing total disability compensation as
a result of his 24 October 1996 work-related injury.
The
evidence in this case showed that plaintiff was employed by Southern Tire Sales
and Service (defendant-employer) as a mechanic. On 24 October 1996, plaintiff
sustained a work-related injury to his back while replacing a vehicle’s lower
ball joint. When an iron pry bar that plaintiff was using slipped unexpectedly,
he experienced pain in his lower back. Defendants initially issued compensation
benefits pursuant to a Form 63, Notice to Employee of Payment of Compensation
Without Prejudice to Later Deny the Claim, which was dated 23 December 1996.
Thereafter, pursuant to N.C.G.S. §97-18(d), defendants accepted liability for
plaintiff’s injury by failing to contest the compensability of plaintiff’s
claim or their liability therefor within the statutory period. See
N.C.G.S. §97-18(d) (2003). Plaintiff continued to work for defendant-employer
and sought medical treatment on 27 November 1996.
In
March 1997 plaintiff came under the care of Michael D. Gwinn, M.D. (Dr. Gwinn),
a board-certified expert in physical medicine and rehabilitation. Tests
revealed that plaintiff suffered from “multi-level lumbar degenerative disk
disease.” On 23 April 1997, Dr. Gwinn released plaintiff to light-duty work,
restricting him from lifting more than fifteen to twenty pounds occasionally.
Dr. Gwinn also recommended that plaintiff avoid frequent bending and twisting.
On 6 August 1997, Dr. Gwinn assigned plaintiff permanent restrictions,
including avoidance of frequent bending and twisting at the waist and
limitations on the number of pounds plaintiff could lift or carry. Dr. Gwinn
was of the opinion that plaintiff had “likely” reached maximum medical improvement
and, if so, he would assign to plaintiff a ten percent permanent partial
disability rating. However, defendant-employer did not have work available that
met plaintiff’s physical restrictions. Consequently, in August 1997 Ronald
Alford (Alford), a Certified Rehabilitation Counselor with Southern
Rehabilitation Network, Inc., was assigned to assist plaintiff in finding
suitable employment.
Although
Alford secured approximately twelve leads for jobs that were within plaintiff’s
restrictions, plaintiff did not receive an offer of employment from any of
these potential employers. Alford testified by deposition that plaintiff was
not hired because he either failed to appear at scheduled interviews or
attended the interviews but effectively sabotaged his chances of being hired
with complaints of being in pain. As a result of plaintiff’s alleged
unwillingness to cooperate with recommended treatment and his refusal to attend
a scheduled evaluation for an in-patient treatment program, defendants filed
with the Commission a motion requesting that plaintiff be ordered to cooperate
with rehabilitation efforts. On 17 August 1998, the Deputy Commissioner ordered
plaintiff to, among other things, “cooperate with efforts at rehabilitation.”
On
11 December 1998, defendants filed a Form 24, Application to Terminate or
Suspend Payment of Compensation, on the ground that plaintiff was still not
cooperating with efforts at rehabilitation. After conducting a hearing on 5 May
1999, the Deputy Commissioner on 27 April 2000 entered an opinion and award
that included findings of fact consistent with Alford’s deposition testimony as
to plaintiff’s failure to attend some job interviews and his behavior at the
interviews he did attend. Based on these findings, the Deputy Commissioner made
conclusions of law entitling defendants to suspend compensation payments as of
9 February 1999 because “[p]laintiff unjustifiably refused to cooperate with
defendant[-employer]’s rehabilitative efforts.” The Deputy Commissioner also
denied plaintiff’s claim for permanent and total disability. On 6 February 2001, the Full Commission
reconsidered the record in the case and reversed the Deputy Commissioner.
Although defendants submitted, and the Commission accepted, additional evidence
prior to the reconsideration, no mention of this evidence is made in the
Commission’s opinion and award. The Commission made the following pertinent
findings of fact:
3. On
24 October 1996, plaintiff sustained an injury arising out of his employment
when the iron bar he was using to replace a lower ball joint suddenly gave way,
and he experienced the immediate onset of pain in his lower back. This injury
was deemed compensable when defendants failed to accept or deny the claim
within the statutory time period after filing an Industrial Commission Form 63.
. . . .
12. In
August 1997, Mr. Ronald Alford, a Certified Rehabilitation Counselor with
Southern Rehabilitation Network, was assigned to assist plaintiff in finding
suitable employment. Mr. Alford located approximately twelve (12) job leads for
plaintiff who attended many interviews. However, no job was ever officially
offered to plaintiff due to his physical condition and restrictions resulting
from his 24 October 1996 compensable injury. Furthermore, in no manner were plaintiff’s
actions regarding these job leads inappropriate and he did not constructively
refuse suitable employment.
13. In
addition to Mr. Alford’s efforts, plaintiff located a job lead on his own in
December 1997, but was not offered the position due to his physical condition
and symptoms.
14. Plaintiff
has made a reasonable effort to locate suitable employment on his own and
through the leads provided to him by Mr. Alford since he was first medically
removed from work by Dr. Adomonis on 27 January 1997.
. . . .
18. Because
no job was ever offered to plaintiff, it cannot be found that he unjustifiably
refused suitable employment.
Based upon these findings, the Commission
concluded that plaintiff was entitled to ongoing total disability compensation.
Defendants appealed the Commission’s decision to the North Carolina Court of
Appeals.
On
20 August 2002, a divided panel of the Court of Appeals held that competent
evidence supported the Commission’s determination that plaintiff did not
constructively refuse suitable employment because no job was ever offered to
plaintiff. The dissenting judge, citing Burwell v. Winn-Dixie Raleigh, Inc.,
114 N.C. App. 69, 441 S.E.2d 145 (1994), stated that the test for determining
whether plaintiff constructively refused suitable employment “is not whether a
job was actually offered, but whether suitable jobs are available and whether
plaintiff is capable of getting one.” Johnson v. Southern Tire Sales &
Serv., 152 N.C. App. 323, 333, 567 S.E.2d 773, 780 (2002). Defendants
appealed to this Court on the basis of the dissent.
The
Commission, having exclusive original jurisdiction over workers’ compensation
proceedings, is required to hear the evidence and file its award, “together
with a statement of the findings of fact, rulings of law, and other matters
pertinent to the questions at issue.” N.C.G.S. §97-84 (2003). 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. Guest v. Brenner Iron
& Metal Co., 241 N.C. 448, 451, 85 S.E.2d 596, 599 (1955). See also
Singleton v. Durham Laundry Co., 213 N.C. 32, 34-35, 195 S.E. 34, 35-36
(1938) (requiring the Commission to make specific findings of fact upon the
evidence).
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. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d
682, 684 (1982). As a result, appellate review of an award from the Commission
is generally limited to two issues: (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. Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186,
345 S.E.2d 374, 379 (1986). “[W]hen the findings are insufficient to determine
the rights of the parties, the court may remand to the Industrial Commission
for additional findings.” Hilliard v. Apex Cabinet Co., 305 N.C. at 595,
290 S.E.2d at 684. In addition, if the findings of the Commission are based on
a misapprehension of the law, the case should be remanded so “that the evidence
[may] be considered in its true legal light.” McGill v. Town of Lumberton,
215 N.C. 752, 754, 3 S.E.2d 324, 326 (1939).
Defendants
raise three issues on appeal. First, defendants contend the Commission erred in
finding that, when defendants failed to accept or deny plaintiff’s claim within
the statutory time period after the Form 63 was filed, a presumption of
continuing disability was established and attached in plaintiff’s favor.
An
employee seeking compensation under the Workers’ Compensation Act for an injury
arising out of and in the course of employment bears “the burden of proving the
existence of his disability and its extent.” Hendrix v. Linn-Corriher Corp.,
317 N.C. at 185, 345 S.E.2d at 378. This Court has recognized that a
presumption of disability in favor of an employee arises only in limited
circumstances. First, the employer and employee may execute a Form 21,
Agreement for Compensation for Disability, that stipulates to a continuing
disability and is subsequently approved by the Industrial Commission. See
Saums v. Raleigh Cmty. Hosp., 346 N.C. 760, 764, 487 S.E.2d 746, 749-50
(1997). Second, the employer and employee may execute a Form 26, Supplemental
Agreement as to Payment of Compensation, that stipulates to a continuing
disability and is later approved by the Commission. See Saunders v. Edenton
Ob/Gyn Ctr., 352 N.C. 136, 140, 530 S.E.2d 62, 65 (2000). Third, an
employee may prove to the Industrial Commission the existence of a disability. See
Watkins v. Central Motor Lines, Inc., 279 N.C. 132, 137-38, 181 S.E.2d 588,
592-93 (1971).
[T]o
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 [plaintiff’s] incapacity to
earn was caused by [his] injury.
Hilliard v. Apex Cabinet Co., 305 N.C. at 595, 290
S.E.2d at 683. This Court has never held that a presumption of
disability is created when a Form 63 is executed by the parties, followed by
payments to the employee by the employer beyond the ninety-day period without
contesting the compensability of or the liability for a claim. Moreover, the
Court of Appeals has held that no presumption is created in those
circumstances. See Sims v. Charmes/Arby’s Roast Beef, 142 N.C.
App. 154, 159-60, 542 S.E.2d 277, 281-82, disc. rev. denied, 353 N.C.
729, 550 S.E.2d 782 (2001). Accordingly, we hold that no presumption of
disability in plaintiff’s favor arose here.
As
a consequence, the Commission erred when it found that plaintiff was entitled
to a presumption of disability once his injury “was deemed compensable when
defendants failed to accept or deny the claim within the statutory time period
after filing an Industrial Commission Form 63.” With this erroneous finding,
the Commission improperly shifted to defendants the burden of producing
evidence that suitable jobs were available to plaintiff. Because the burden
remained on plaintiff to prove his disability, the Commission was obligated to
make specific findings regarding the existence and extent of any disability
suffered by plaintiff. The Commission found: “On 24 October 1996, plaintiff
sustained an injury arising out of his employment when the iron bar he was
using to replace a lower ball joint suddenly gave way, and he experienced the
immediate onset of pain in his lower back.” Although the Commission also found
that “[m]ultiple MRI’s and other testing revealed that plaintiff had a
multi-level lumbar degenerative disk disease which had been aggravated” and
that “Dr. Lestini found bulging discs,” it made no findings as to the nature or
extent of the alleged injury or the degree to which the alleged injury
exacerbated a pre-existing condition.
In
addition, the Commission made findings that “[p]laintiff’s pain is constant and
severe” and that “plaintiff continues to experience debilitating pain as the
result of his 24 October 1996 injury.” Although pain can be part of a
finding of disability, see Fleming v. K-Mart Corp., 312 N.C. 538, 546,
324 S.E.2d 214, 218-19 (1985), the 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) (2003). Consequently, a determination of whether
a worker is disabled focuses upon impairment to the injured employee’s earning
capacity rather than upon physical infirmity. Peoples v. Cone Mills Corp.,
316 N.C. 426, 434-35, 342 S.E.2d 798, 804 (1986). In light of the fact that
evidence was presented that plaintiff could still perform some types of work,
these findings are inadequate to establish that plaintiff is disabled because
of his pain.
The
Commission’s final finding of fact, that “[a]s the result of his 24 October
1996 injury by accident, plaintiff has been incapable of earning wages in his
former position with defendant-employer or in any other employment for the
period of27 January 1997 through the present and continuing,” is no more than a
conclusory synopsis of its preceding findings.
[T]he
court cannot ascertain whether the findings of fact are supported by the
evidence unless the Industrial Commission reveals with at least a fair degree
of positiveness what facts it finds. 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.
Thomason v. Red Bird Cab Co., 235 N.C. 602, 606, 70 S.E.2d 706, 709
(1952). Because the Commission improperly allocated the burden of proof as to
the issue of disability and because, as a result of this misallocation, the
Commission failed to make specific comprehensive findings as to the existence
and extent of plaintiff’s injury, its conclusion of law that plaintiff was
totally disabled as a result of his work-related injury is unsupported by
sufficient evidence. Therefore, we remand to the Commission for the purpose of making
adequate findings of fact.
In
their second assignment of error, defendants contend that the Commission
applied an incorrect legal standard in determining whether plaintiff
constructively refused suitable employment. Defendants argue that the appropriate
legal standard for a determination of such constructive refusal is not whether
a job was ever offered to plaintiff, but rather whether the jobs identified by
the rehabilitation consultant were suitable and whether plaintiff was capable
of obtaining such a job if he had diligently sought employment.
If
an injured employee establishes a compensable injury, the burden shifts to the
employer to rebut the employee’s evidence. Gayton v. Gage Carolina Metals,
Inc., 149 N.C. App. 346, 349, 560 S.E.2d 870, 872 (2002). As to the injured
employee’s ability to work, this burden “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.’“ Burwell v. Winn-Dixie Raleigh, Inc., 114 N.C.
App. at 73, 441 S.E.2d at 149 (quoting Kennedy v. Duke Univ. Med. Ctr.,
101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990)) (emphasis omitted). The
United States Fourth Circuit Court of Appeals has defined a “suitable job” as
being one that is available to the employee and that the employee is capable of
performing considering, among other things, his physical limitations. Trans-State
Dredging v. Benefits Review Bd., 731 F.2d 199, 201 (4th Cir. 1984). An
employee is “capable of getting” a suitable job when “‘there exists a
reasonable likelihood . . . that he would be hired if he diligently
sought the job.’“ Id. at 201 (quoting New Orleans (Gulfwide)
Stevedores v. Turner, 661 F.2d 1031, 1043 (5th Cir. 1981)).
An
employer need not show that the employee was specifically offered a job by some
other employer in order to prove that the employee was capable of obtaining
suitable employment. Trans-State Dredging v. Benefits Review Bd., 731
F.2d at 201. Instead, the crucial question is whether the employee can obtain a
job. Bridges v. Linn-Corriher Corp., 90N.C. App. 397, 400-01, 368 S.E.2d
388, 390-91, disc. rev. denied, 323 N.C. 171, 373 S.E.2d 104 (1988). If
the employer successfully rebuts the employee’s evidence of disability by
producing evidence that the employee has refused suitable employment without
justification, compensation can be denied. N.C.G.S. §97-32 (2003) (“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.”). See also Branham v. Denny Roll & Panel Co.,
223 N.C. 233, 236, 25 S.E.2d 865, 867-68 (1943), limited by Peoples v. Cone
Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986). However, if an employer
makes a showing that the employee refused a suitable job, the employee may
respond by “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
v. Winn-Dixie Raleigh, Inc., 114 N.C. App. at 74, 441 S.E.2d at 149 (citing
Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 732, 403 S.E.2d 548,
551, disc. rev. denied, 329 N.C. 505, 407 S.E.2d 553 (1991)).
Here,
defendants endeavored to meet their burden of proving that suitable jobs were
available by introducing the deposition of Ronald Alford, a vocational
rehabilitation and employment counselor. As set out in the Deputy
Commissioner’s findings of fact, Alford testified that he identified
approximately twelve jobs that, given plaintiff’s vocational background and
physical limitations, were suitable for him. Alford’s testimony included not
only descriptions of what these jobs entailed, but also detailed plaintiff’s
failure to keep appointments for some job interviews that were arranged for him
and his balky behavior at the job interviews he did attend. In addition, Alford
testified that in his opinion plaintiff could have found work if he had made a
diligent effort to do so.
Alford’s
evidence raised an issue of fact with respect to the compensability of
plaintiff’s injury. As a result, relevant findings by the Commission were
required. The Commission made two findings of fact as to whether plaintiff
refused work. First, after noting that plaintiff had received no job offers
despite attending “many interviews,” the Commission found: “Furthermore, in no
manner were plaintiff’s actions regarding these job leads inappropriate and he
did not constructively refuse suitable employment.” However, this finding is
not supported by any evidence cited in the Commission’s opinion and award. It
appears that the Commission inserted this conclusory finding merely to refute
the numerous specific findings to the contrary made by the Deputy Commissioner.
The Commission’s opinion and award should have contained specific findings as
to what jobs plaintiff is capable of performing and whether jobs are reasonably
available for which plaintiff would have been hired had he diligently sought
them. Because the Commission’s opinion and award is devoid of any recitation of
any such evidence, this finding is unsupported by sufficient evidence.
The
Commission’s second related finding was that “[b]ecause no job was ever offered
to plaintiff, it cannot be found that he unjustifiably refused suitable
employment.” If, as this finding suggests, an injured employee must be offered
a job before there can be any consideration whether the employee’s refusal to
take that job was justified, there would be no need for the doctrine of
constructive refusal. Accordingly, the Commission’s second finding was legally
inadequate.
On
the other hand, the Commission made findings regarding plaintiff’s efforts to
find employment. The Commission found that “plaintiff located a job lead on his
own” and that “[p]laintiff has made a reasonable effort to locate suitable
employment.” Although relevant, these findings alone are insufficient to
support the Commission’s conclusions of law and do not cure the error resulting
from the lack of findings concerning the suitability of alternative employment.
Accordingly, we remand with instructions that the Commission make necessary
findings of fact on which the rights of the parties can be determined.
Finally,
defendants contend the Commission erred by failing to consider the Deputy
Commissioner’s personal observations that plaintiff was exaggerating any pain
he was experiencing at the hearing before the Deputy and by failing to place
sufficient weight on Dr. Gwinn’s opinion that plaintiff had reached maximum
medical improvement. However, this Court has held that “‘[t]he Commission is
the sole judge of the credibility of the witnesses and the weight to be given
their testimony.’“ Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d
411, 413 (1998) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431,
433-34, 144 S.E.2d 272, 274 (1965)). “Whether the full Commission conducts a
hearing or reviews a cold record, N.C.G.S. §97-85 places the ultimate
fact-finding function with the Commission-- not the hearing officer. It is the
Commission that ultimately determines credibility, whether from a cold record or
from live testimony.” Id. at 681, 509 S.E.2d at 413. Accordingly, the
Commission here was permitted to make the determinations about which defendants
complain. These assignments of error are overruled.
We
reverse the decision of the Court of Appeals and remand this case to that court
for further remand to the Industrial Commission with directions to make
additional specific findings of fact.
REVERSED
AND REMANDED.