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NO.
COA03-1064
NORTH
CAROLINA COURT OF APPEALS
Filed:
18 January 2005
PATRICIA
BROOKS,
Employee,
Plaintiff-Appellee
v. North
Carolina Industrial Commission
I.C. File No. 710141
CAPSTAR
CORPORATION,
Employer,
THE
HARTFORD,
Carrier,
Defendants-Appellants
Appeal by defendants
from opinion and award entered 29 April 2003 by the North Carolina Industrial
Commission. Heard in the Court of
Appeals 19 May 2004.
David P. Parker, for
plaintiff-appellee.
Morris York Williams
Surles & Barringer, L.L.P., by John F. Morris and Roberta S. Sperry, for
defendants-appellants.
McGEE, Judge.
Capstar Corporation
(employer) and The Hartford, carrier (collectively defendants) appeal from an
opinion and award of the North Carolina Industrial Commission (the Commission)
filed 29 April 2003 finding and concluding that Patricia Brooks (plaintiff) complied
with the vocational services provided by defendants and that she had not
constructively refused to accept employment.
Accordingly, defendants were ordered to reinstate plaintiff’s total
disability compensation.
The evidence before the
Commission tended to show that at the date of injury, plaintiff had worked for
employer as a seamstress for ten years.
Plaintiff was injured on 27 January 1997 when her left arm and elbow
were struck by a door as she turned to see a coworker. Defendants accepted the claim as compensable
through a Form 60.
Dr. Wodecki initially
diagnosed plaintiff with a left elbow contusion on 28 January 1997, and she was
allowed to return to work with lifting restrictions. Plaintiff continued to complain of pain and Dr. Wodecki referred
plaintiff to Dr. Bryon Dunaway (Dr. Dunaway).
Dr. Dunaway diagnosed plaintiff on 28 March 1997 as having a “left
medial elbow contusion resulting in a chronic medial tennis elbow.” Dr. Dunaway released plaintiff to return to
work. He also noted that plaintiff’s
motivation for returning to work was low.
Plaintiff continued to seek treatment from Dr. Dunaway until 21 May
1997. During this time, plaintiff
complained of neck, shoulder, arm, and hand pain attributable to a prior motor
vehicle accident. Dr. Dunaway
ultimately diagnosed plaintiff as having a disc herniation.
Plaintiff next sought
treatment on 5 June 1997 from Dr. Larry Pearce (Dr. Pearce) who provided pain
management treatment for plaintiff through July 1998. Dr. Pearce signed a Form 28U on 6 November 1997, but defendants
did not reinstate plaintiff’s benefits since Dr. Pearce was not plaintiff’s
authorized treating physician. However,
after the Commission authorized Dr. Pearce as a treating physician for
plaintiff, defendants reinstated plaintiff’s benefits. Plaintiff next sought treatment from Dr. T.
Kern Carlton (Dr. Carlton) on 18 April 2000.
A deputy commissioner
entered an opinion and award on 25 October 2000 ordering defendants to pay
plaintiff temporary total disability compensation until further order of the
Commission. The deputy commissioner
also concluded that as a condition of receiving these benefits, plaintiff was
required to “cooperate fully with medical and vocational services[.]”
In a Form 24 dated 5
February 2001, defendants requested that plaintiff’s compensation be suspended,
alleging that plaintiff had “impeded [defendants’] efforts at returning
[plaintiff] to suitable employment[.]”
Plaintiff disputed that compensation should be suspended on the ground
that “no suitable employment ha[d] been found, offered, approved and [was]
available.” In an order filed 29 March
2001, a special deputy commissioner approved defendants’ application to suspend
plaintiff’s compensation from the date the Form 24 was filed until plaintiff
demonstrated compliance with the vocational and rehabilitation services.
A deputy commissioner
entered an opinion and award on 29 August 2002 rescinding the special deputy
commissioner’s order which had allowed defendants to suspend plaintiff’s temporary
total disability compensation.
Defendants appealed to the Commission.
In an opinion and award filed 29 April 2003, the Commission concluded
that plaintiff had complied with the vocational services provided by defendants
and that defendants’ Form 24 application was improvidently granted. Accordingly, the Commission vacated the
special deputy commissioner’s order allowing defendants to suspend plaintiff’s
compensation. The Commission further
ordered that plaintiff’s benefits be reinstated effective 8 February 2001 until
further order of the Commission.
Defendants appeal.
This Court’s review of
an opinion and award of the Commission is “limited to reviewing whether any
competent evidence supports the Commission’s findings of fact and whether the
findings of fact support the Commission’s conclusions of law.” Deese v. Champion Int’l Corp., 352
N.C. 109, 116, 530 S.E.2d 549, 553 (2000).
“Under our Workers’ Compensation Act, ‘the Commission is the fact
finding body.’“ Adams v. AVX Corp.,
349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Brewer v. Trucking
Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)). “The facts found by the Commission are
conclusive upon appeal to this Court when they are supported by competent
evidence, even when there is evidence to support contrary findings.” Pittman v. International Paper Co.,
132 N.C. App. 151, 156, 510 S.E.2d 705, 709, disc. review denied, 350
N.C. 310, 534 S.E.2d 596, aff’d, 351 N.C. 42, 519 S.E.2d 524
(1999). So long as “there is any
credible evidence to support the findings, the reviewing court is bound by
it.” Roman v. Southland Transp. Co.,
350 N.C. 549, 556, 515 S.E.2d 214, 219 (1999).
Defendants first argue
in multiple assignments of error that the Commission erred in concluding that
plaintiff complied with the vocational rehabilitation services and in
concluding that the Form 24 was improvidently granted. Defendants argue that plaintiff had a
suitable work opportunity, that she sabotaged the vocational rehabilitation
efforts, and that although capable of work, she “chose to thwart efforts to
obtain suitable employment.” For the
reasons stated below, we disagree.
The Commission
specifically found that:
13. The greater weight of the evidence of record
shows that from December 20, 2001 to March 29, 2001, plaintiff was cooperative
with the vocational case manager, Ms. O’Kane.
Plaintiff did whatever Ms. O’Kane asked her to do and met with Ms.
O’Kane on a regular basis.
14. Plaintiff did not intentionally sabotage
vocational efforts regarding the security job available with Statesville Auto
Auction.
Accordingly, the
Commission concluded that:
1. Plaintiff has complied with the vocational
services provided by defendants.
Plaintiff has not constructively refused to accept suitable employment
available to her that she could have obtained with due diligence. N.C. Gen. Stat. §97-25; 97-32.
2. In that plaintiff has not refused to comply
with vocational rehabilitation, the Form 24 application was improvidently
granted and defendants are not entitled to suspend payment of
compensation. N.C. Gen. Stat. §97-25.
As support for their first argument, defendants assert that plaintiff “had an opportunity for suitable work with Statesville Auto Auction within the guidelines set by her doctor, but she sabotaged the efforts of vocational rehabilitation[.]” Defendants also emphasize plaintiff’s interview with Cracker Barrel as support for their argument.
Defendants assert that
plaintiff’s vocational case manager, Katherine O’Kane (Ms. O’Kane), testified
that plaintiff “was attempting to impede [d]efendants’ efforts at suitable job
placement.” Defendants primarily rely
on the events surrounding plaintiff’s potential job as a security guard at the Statesville Auto Auction. Ms. O’Kane prepared a job analysis for the
available position and plaintiff’s counsel responded in an 18 October 2000
letter that the position would be suitable with the exception of the report
writing requirement and the time of work.
Nonetheless, plaintiff’s counsel stated that he would “recommend and
encourage [plaintiff] to apply.” Ms.
O’Kane forwarded the job analysis to Dr. Carlton and, in a letter dated 27
October 2000, Dr. Carlton stated that the position was “within [plaintiff’s]
capabilities if it does not require excessive report writing.” Ms. O’Kane provided Dr. Carlton with
clarification on the report writing requirement.
Ms. O’Kane’s 14 November
2000 report indicates that she and plaintiff met with two managers at
Statesville Auto Auction on 7 November 2000 about the security guard
position. The area manager indicated
that an integral part of the position was the ability to read vehicle
identification numbers on cars and make sure they matched the numbers on paper. At the meeting, plaintiff indicated that she
could read the numbers on the vehicles but that she could not read the numbers
on the paper. Plaintiff also mentioned
that when her hand was swollen, she had difficulty focusing on small
objects. Plaintiff further expressed to
the managers that she was unable to write.
In the report, Ms. O’Kane stated that plaintiff “often focuses on what
she cannot do versus what she can do, and expresses this to the employer which
is not the most effective method to interview.” Ms. O’Kane also noted that plaintiff’s “motivation to return to
work is questionable because of how she presents herself to employer[.]”
In a letter dated 19
December 2000, Dr. Carlton approved the security guard position. However, when Ms. O’Kane contacted
the Statesville Auto Auction on 20 December 2000, she was told that no
positions were available.
As additional support
for their argument, defendants also point to Ms. O’Kane’s testimony regarding
when she accompanied plaintiff to an employer meeting at Cracker Barrel on 4
October 2000 for a position as a hostess.
Ms. O’Kane stated that there was “a little bit of tension” at the
meeting because plaintiff had brought along work restrictions from Dr. Pearce
that she wanted to review with the potential employer. Ms. O’Kane attempted to explain that the
restrictions were not applicable because Dr. Pearce was not plaintiff’s
treating physician. In her report dated
9 October 2000, Ms. O’Kane stated that the Cracker Barrel manager “relayed that
he [did] not feel that [plaintiff] want[ed] to work” even though Cracker Barrel
makes an effort to “work with individuals with disabilities or work
restrictions[.]”
In spite of the
testimony and evidence cited by defendants, we conclude that there is
sufficient evidence in the record to support the disputed findings of
fact. Ms. O’Kane testified extensively
about her experience working as plaintiff’s vocational case manager. She testified that prior to the interview
for the security guard position, plaintiff had attended every meeting, had
been cooperative, and had followed up
on all leads about which Ms. O’Kane had instructed her.
Regarding the interview
process for the security guard position, Ms. O’Kane was asked whether plaintiff
cooperated with her up until 20 December 2000.
Ms. O’Kane responded affirmatively but then stated that she thought
their meeting with the two managers “could have been handled a little
differently.” However, she further
stated that she did not know “if that would be deemed [] cooperative or
uncooperative.” Ms. O’Kane also
testified that after 20 December 2000, plaintiff “was cooperative and did
. . . whatever I asked her to do and met with me on a regular
basis.” Further, the following exchange
occurred between Ms. O’Kane and plaintiff’s counsel:
Q. Her attitude towards work and finding work up until
you stopped working with her, what was it generally?
A. Her attitude?
I think she was just very nervous to try something new.
Q. Did she cooperate with you?
A. She did, but then there’s the gray area of the
employer meeting at the Statesville Auto Auction. I wouldn’t say that it wasn’t not - was cooperating or not
cooperating with me. It just added some
issues, I guess, to possibly meeting with another employer in the future
possibly.
When asked on
cross-examination to elaborate, Ms. O’Kane clarified that she thought
“generally, yes, [plaintiff] . . . did everything [Ms. O’Kane] asked
her to do.” However, Ms.
O’Kane again testified about how plaintiff expressed her inability to read the
vehicle identification numbers.
When asked on cross-examination why Ms. O’Kane thought plaintiff was not offered the security guard position, Ms. O’Kane did state that plaintiff could have presented her alleged inability to read the vehicle identification numbers in a more favorable manner. For example, Ms. O’Kane indicated that plaintiff could have asked to come back after getting glasses. However, despite this testimony, Ms. O’Kane also specifically stated that she did not think that plaintiff “intentionally did anything to mess anything up with the employer[.]” She further stated that she was “not saying specifically that it was messed up[.]”
This testimony is in
contrast to the evidence presented to the Commission in Johnson v. Southern
Tire Sales & Serv., 358 N.C. 701, 599 S.E.2d 508 (2004), where the
defendant argued the plaintiff constructively refused suitable employment. In Johnson,
a vocational rehabilitation and employment counselor testified he identified
approximately twelve jobs that were suitable for the plaintiff, given
plaintiff’s vocational background and physical limitations. The counselor testified the plaintiff failed
to keep appointments for some job interviews that were arranged for him and
that the plaintiff had “balky behavior” at the job interviews he did
attend. He also testified that in his
opinion the plaintiff could have found work if he had made a diligent effort to
do so. In spite of the counselor’s
testimony, the Commission found that “‘in no manner were plaintiff’s actions
regarding these job leads inappropriate and he did not constructively refuse
suitable employment.’“ Johnson,
358 N.C. at 710, 599 S.E.2d at 514.
However, the Supreme Court determined this finding was not supported by
any evidence cited in the Commission’s opinion and award. The Court stated “[t]he Commission’s opinion
and award should have contained specific findings as to what jobs plaintiff
[was] capable of performing and whether jobs [were] reasonably available for
which plaintiff would have been hired had he diligently sought them.” Id.
Although there was
evidence that plaintiff in the case before us could have presented herself more
favorably, there was no evidence, as there was in Johnson, that
plaintiff failed to keep appointments for job interviews or that she had “balky
behavior” at her job interviews. There
is competent evidence in the record in this case that supports the Commission’s
findings that plaintiff was cooperative with Ms. O’Kane and did not
intentionally sabotage defendants’ efforts to find her suitable
employment. Therefore, the Commission
did not err in its findings. These
findings support the conclusions that
plaintiff complied with the vocational rehabilitation and that the Form 24
application was improvidently granted.
Defendants’ argument is without merit.
Defendants next argue that
the Commission erred in awarding plaintiff temporary total disability from 8
February 2001 until further order of the Commission since there was no
competent evidence or finding of fact that plaintiff was disabled as defined by
N.C. Gen. Stat. §97-2(9). Defendants
cite Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682,
683 (1982) to show what the Commission must find in order to support a
conclusion of disability. However, for
the reasons stated below, we find this argument unpersuasive.
The case before our
Court involves an admitted claim.
Defendants filed a Form 60 dated 2 April 1997 admitting plaintiff’s
right to compensation because of the arm injury. Furthermore, the parties stipulated that “plaintiff sustained an
admittedly compensable injury to her left arm on January 28, 1997.” In the Form 24 filed by defendants, employer
checked the box stating that “[t]he employer admitted employee’s right to
compensation pursuant to N.C. Gen. Stat. §97-18(b).” Thus, as stated in the Commission’s opinion and award, the only
issue before the Commission was “whether plaintiff has complied with vocational
rehabilitation as ordered by Deputy Commissioner Lorrie Dollar on October 25,
2000.” Whether or not plaintiff was
disabled was not at issue. Rather, the
dispute focused on whether or not plaintiff complied with vocational
rehabilitation efforts. Accordingly,
the Commission did not err by not finding as a fact that plaintiff was
disabled. This argument is without
merit.
In addition to addressing
defendants’ arguments, we note that plaintiff asserts that she is entitled to
have defendants pay her expenses incurred in connection with the present
appeal. Under N.C. Gen. Stat. §97‑88
(2003), the Commission or a reviewing court may award costs, including
attorney’s fees, to an injured employee “‘if (1) the insurer has appealed a
decision to the full Commission or to any court, and (2) on appeal, the
Commission or court has ordered the insurer to make, or continue making,
payments of benefits to the employee.’“
Brown v. Public Works Comm., 122 N.C. App. 473, 477, 470 S.E.2d
352, 354 (1996) (quoting Estes v. N.C. State University, 117 N.C. App.
126, 128, 449 S.E.2d 762, 764 (1994)).
In the case before us, defendants appealed the deputy commissioner’s
decision that temporary total disability compensation be paid to
plaintiff. On appeal, the Commission
affirmed the award of temporary total disability compensation. Defendants now appeal to this Court the
Commission’s decision, and we too affirm the decision that defendants reinstate
plaintiff’s disability compensation.
The requirements of N.C. Gen. Stat. §97‑88 are therefore
satisfied, and we grant plaintiff’s request for expenses incurred in this
appeal in our discretion. See Flores
v. Stacy Penny Masonry Co., 134 N.C. App. 452, 459, 518 S.E.2d 200, 205
(1999); Brown, 122 N.C. App. at 477, 470 S.E.2d at 354. Accordingly, this matter is remanded to the
Commission with instruction that the Commission determine the amount due
plaintiff for the expenses she incurred as a result of the appeal to this
Court, including reasonable attorney’s fees.
For the foregoing
reasons, the opinion and award of the Commission is affirmed and this matter
remanded for a determination of the appropriate amount of costs to be taxed to
defendants.
Affirmed; remanded for
costs determination.
Judge TIMMONS-GOODSON
concurs.
Judge TYSON dissents
with a separate opinion.
NO. COA03-1064
NORTH
CAROLINA COURT OF APPEALS
Filed:
18 January 2005
PATRICIA
BROOKS,
Employee,
Plaintiff-Appellee
v. North
Carolina Industrial Commission
I.C. File No. 710141
CAPSTAR
CORPORATION,
Employer,
THE
HARTFORD,
Carrier,
Defendants-Appellants
TYSON, Judge dissenting.
The majority affirms the
Commission’s Opinion and Award by attempting to distinguish this case from our
Supreme Court’s decision in Johnson v. Southern Tire Sales & Serv.,
358 N.C. 701, 599 S.E.2d 508 (2004). Johnson
is directly on point and controlling precedent. The Commission must make relevant and specific findings of fact,
which it failed to do in this case. I
vote to reverse and remand the Commission’s opinion and award which held that
plaintiff: (1) complied with the
vocational services provided by the defendants; and (2) did not constructively
refuse to accept suitable employment. I
respectfully dissent.
I. Johnson v. Southern Tire Sales &
Service
In Johnson, our
Supreme Court outlined the appropriate legal standard to be applied to
determine whether a plaintiff constructively refused suitable employment. “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.” Johnson, 358 N.C. at 709, 599 S.E.2d
at 514 (citing Trans‑State Dredging v. Benefits Review Bd., 731
F.2d 199, 201 (4th Cir. 1984)).
“Instead, the crucial question is whether the employee can obtain a
job.” Johnson, 358 N.C. at 709,
599 S.E.2d at 514 (citing Bridges v. Linn‑Corriher Corp., 90 N.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)).
N.C. Gen. Stat. §97-32
(2003) 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.” “[I]f 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.’” Johnson,
358 N.C. at 709, 599 S.E.2d at 514 (quoting Burwell v. Winn‑Dixie
Raleigh, Inc., 114 N.C. App. 69, 74, 441 S.E.2d 145, 149 (1994) (citation
omitted)).
In Johnson, the
defendants presented evidence to show the plaintiff constructively refused
employment. 358 N.C. at 709-10, 599
S.E.2d at 514. “As a result [of this evidence],
relevant findings by the Commission were required.” Id. at 710, 599 S.E.2d at 514. The Johnson Court noted the Commission made two factual
findings. First, “in no manner were
plaintiff’s actions regarding these job leads inappropriate and he did not
constructively refuse suitable employment.”
Id. Second, the
Commission found that, “because no job was ever offered to plaintiff, it cannot
be found that he unjustifiably refused suitable employment.” Id.
Our Supreme Court
concluded the first finding was “not supported by any evidence cited in the . .
. opinion and award . . . . [It] 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.” Id. (emphasis supplied). The Court determined the second finding was
“legally inadequate,” as it completely negated the doctrine of constructive
refusal. Id. at 710, 599 S.E.2d
at 515.
Due to the Commission’s
insufficient and “legally inadequate” findings, our Supreme Court reversed and
remanded the matter for more specific factual findings. Id. at 711, 599 S.E.2d at 515.
II. Fully Comply and Constructive Refusal
Defendants argue that
plaintiff did not “fully comply” with her employer’s attempts to find her
suitable employment following her injury in January 1997 and constructively
refused suitable employment. They
introduced the testimony of Ms. O’Kane and Dr. Carlton’s deposition as
evidence.
Ms. O’Kane wrote in her
vocational reports that plaintiff’s “motivation to return to work is
questionable because of how she presents herself to the employer” and noted
plaintiff always focused on activities she was incapable of performing. Her lack of motivation was apparent during
the two interviews Ms. O’Kane set up and attended with plaintiff. First, plaintiff interviewed at Cracker
Barrel in October 2000. She
“interjected several times what duties she could not perform while the manager
reviewed the job description.”
Plaintiff presented a note to the manager detailing purported work
restrictions from a doctor who was not authorized by the Commission to act as
her treating physician. Afterwards, the
interviewing manager confided in Ms. O’Kane that plaintiff seemed “defensive”
and “he wasn’t sure whether [plaintiff] wanted to work or not,” even though
Cracker Barrel was willing to accommodate its employees’ physical
limitations. Ms. O’Kane testified that
“there was a little bit of tension” and plaintiff “could have presented herself
a little more favorably to the manager.”
Second, plaintiff
interviewed with the Statesville Auto Auction in November 2000. The job entailed plaintiff reading vehicle
identification numbers (“VIN”) off of motor vehicles, compare them to VIN
listed on a sheet, and writing reports concerning vehicular damage. Plaintiff complained that she could not read
the VIN on the sheet and that her hand would swell after writing. The interviewer offered to write reports for
her, suggested she come back with some reading glasses, and expressed a desire
to employ her. Again, Ms. O’Kane
testified that plaintiff could have presented herself in a better manner. Ms. O’Kane wrote in her 14 November 2000
report after the interview that plaintiff “often focuses on what she cannot do
versus what she can do, and expresses this to the employer.” She later testified that “it just added some
issues . . . to possibly meeting with another employer in the future . . . .” Both the jobs available at Cracker Barrel
and the Statesville Auto Auction fit the work restrictions set out by
plaintiff’s treating physician at the time.
Dr. Carlton testified to
plaintiff’s lack of motivation to return to work in his deposition. He noted plaintiff lacked economic
motivation to return to work as shown by her application for social security
disability payments and her continued receipt of defendants’ payments without
working. Dr. Carlton indicated he
offered constant encouragement for plaintiff to find suitable employment. At the time plaintiff interviewed with
Statesville Auto Auction, she had no physical restrictions on her
employment. Yet, she objected to
performing any physical activity and failed to cite any restriction from
her injury that would have prevented her from taking the job.
Finally, Dr. Carlton
testified to other activities plaintiff was capable of and was actually
performing as evidence of her capacity to work, such as light housework,
driving, and babysitting and caring for her grandchildren. As in Johnson, the Commission failed
to make any relevant findings of fact on defendants’ competent and
uncontradicted evidence.
Several additional
factors from the record are compelling.
First, plaintiff was injured on 27 January 1997. No evidence shows that she has worked at
gainful employment since her injury.
Second, the record refers to just two interviews plaintiff attended over
the course of almost eight years.
Third, plaintiff admitted, “I just did whatever [Ms. O’Kane] was telling
me to do.” The record is devoid of any
indication that plaintiff was proactive in obtaining employment. Fourth, competent and uncontested testimony
proved plaintiff is capable of physical activity beyond any limitations imposed
by her injury. Fifth, the record fails
to show that plaintiff contacted Dr. Carlton to inquire why he was delayed in
responding to the Statesville Auto Auction job. Sixth, a Deputy Commissioner suspended compensation payments to
plaintiff for failing to fully comply with vocational rehabilitation services
provided by defendants after finding plaintiff “failed to present herself in a
manner befitting a person genuinely seeking employment.”
These factors show that
plaintiff has not appropriately, actively, or “diligently sought” suitable
employment and has made no “reasonable effort to return to work,” as is
required by law. Johnson, 358
N.C. at 708-09, 599 S.E.2d at 514 (the applicable standard in reviewing the
employee’s efforts is whether she “diligently sought” employment) (citations
omitted); Effingham v. Kroger Co., 149 N.C. App. 105, 114-15, 561 S.E.2d
287, 294 (2002) (A presumption exists
that an employee will eventually recover and go back to work and they must make
“reasonable efforts to go back to work.”).
Doing “whatever [Ms. O’Kane] was telling me to do” is insufficient
to: (1) overcome defendants’ evidence
of plaintiff’s refusal to work; (2) overcome the presumption that plaintiff is
capable of performing work; and (3) show that she “diligently sought” to return
to work. The Commission’s opinion and
award and the majority’s opinion places the entire burden to procure a job for
plaintiff on defendants while allowing plaintiff every opportunity to sabotage
defendants’ efforts. Plaintiff is
allowed to be recalcitrant by sitting idly by and not make any effort to
secure, much less “diligently seek,” employment.
These observations,
combined with defendants’ uncontradicted proffered evidence, show: (1) suitable employment was available for
plaintiff; and (2) she constructively refused and sabotaged efforts to procure
suitable employment. See Johnson,
358 N.C. at 709-10, 599 S.E.2d at 514.
III. Commission’s Findings
The Commission made
three findings of fact regarding whether plaintiff fully complied with
defendants’ search for suitable employment.
13. The greater weight of the evidence of record
shows that from December 20, 2001 to March 29, 2001 [sic], plaintiff was
cooperative with the vocational case manager, Ms. O’Kane. Plaintiff did whatever Ms. O’Kane asked her
to do and met with Ms. O’Kane on a regular basis.
14. Plaintiff did not intentionally sabotage
vocational efforts regarding the security job available with Statesville Auto
Auction.
15. The Full Commission finds by the greater weight
of the credible evidence that plaintiff has complied with vocational
rehabilitation as ordered by Deputy Commissioner Dollar on October 25, 2000.
(Emphasis supplied).
As in Johnson,
the Commission made no 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 [she] diligently sought them.” 358 N.C. at 710, 599 S.E.2d at 514. The Commission’s findings are not supported
by any competent evidence. See id.
at 710-11, 599 S.E.2d at 515; see also Dolbow v. Holland Industrial,
64 N.C. App. 695, 696, 308 S.E.2d 335, 336 (1983), disc. review denied,
310 N.C. 308, 312 S.E.2d 651 (1984)
(citation omitted) (review of the Commission’s order is two-fold: “(1) whether there was any competent
evidence before the Commission to support its findings of fact; and (2) whether
. . . the findings of fact of the Commission justify its legal conclusions and
decisions.”)
The Commission found
that: (1) the Cracker Barrel job was
not suitable for plaintiff pursuant to Dr. Carlton’s restrictions (despite such
restrictions not existing at the time of her interview); and (2) plaintiff was
not responsible for losing the job opportunity at Statesville Auto
Auction. However, as our Supreme Court
explained in response to similar findings in Johnson, “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.”
Id. at 710, 599 S.E.2d at 515.
IV. Conclusion
Johnson v. Southern Tire
Sales & Service
is controlling precedent at bar. I
would reverse and remand the case to the Commission with instructions to make
further and more specific findings of fact.
In light of my view that this case must be remanded, it is premature to
determine whether to award expenses to plaintiff. I respectfully dissent.