All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NO. COA03-117
NORTH CAROLINA COURT OF APPEALS
Filed: 16 December 2003
JUDI
BAKER,
Employee,
Plaintiff;
v. North
Carolina Industrial Commission
I.C. File No. 736361
SAM’S
CLUB,
Employer;
and
CLAIMS
MANAGEMENT, INC.,
Carrier;
Defendants.
Appeal by plaintiff from opinion and award entered 20 September 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 30 October 2003.
Brumbaugh,
Mu & King, P.A., by Leah L. King, for plaintiff-appellant.
Young,
Moore & Henderson, P.A., by J.D. Prather and Michael W. Ballance, for
defendant-appellees.
HUDSON,
Judge.
Plaintiff
Judi Baker (“plaintiff”) suffered knee, arm, shoulder and neck injuries when
she slipped at and fell while at work. Plaintiff’s employer, Sam’s Club
(“defendant”), paid disability compensation and medical treatment costs related
to the knee injury, but denied compensability for the arm, shoulder and neck
problems. Plaintiff sought a hearing. Deputy Commissioner Wanda Blanche Taylor
heard plaintiff’s case in Wilmington on 31 March 1998, and entered her opinion
and award 1 July 1999, awarding compensation only for permanent partial
disability related to her knee injury. Plaintiff appealed the Deputy
Commissioner’s decision to the Full Commission, which reviewed her case 29
February 2000. On 20 September 2002, the Full Commission filed an opinion and
award, again awarding plaintiff compensation only for the permanent partial
disability rating related to her knee injury, pursuant to N.C. Gen. Stat.
§97-31 (1995). Plaintiff appeals, alleging error in the Commission’s failure to
make findings about the suitability of plaintiff’s job following her injury.
For the reasons discussed below, we reverse in part and remand to the Full
Commission for findings about the suitability of plaintiff’s post-injury
position, and for appropriate conclusions based on those findings.
The
findings of the Commission indicate that plaintiff was employed by defendant as
an outside marketing representative earning an average weekly wage of $428.00.
On 24 May 1996, in the course and scope of her employment, plaintiff slipped
and fell while calling on Food Lion, a customer of defendant. Embarrassed by
her fall, plaintiff attempted to complete the call, and then reported the
accident to her supervisor immediately on returning from the field. Defendants
accepted plaintiff’s claim as a compensable injury by accident to her knee.
Plaintiff
saw doctors at Cape Fear Occupational Health Services with anterior knee pain
and reports of neck, arm and shoulder pain. Plaintiff eventually underwent knee
surgeries on 11 November 1996 and 25 April 1997, and remained out of work until
7 September 1997. Plaintiff’s physician released her to return to work with
restrictions and recommended a primarily sedentary job without kneeling,
stooping, squatting or bending, limited stair climbing and a lifting limit of
twenty pounds.
Plaintiff
returned to work with defendant 7 September 1997, taking a sit-down position at
the Credit Applications desk. Plaintiff was able to perform this job, but the
position was eliminated nationwide after 25 December 1997. Defendant then
transferred plaintiff to a demonstrator job, preparing food products for
customers to taste while in the store. The position required plaintiff to load
the necessary food and equipment onto a cart, push the cart to the
demonstration location, prepare the food, serve it to customers, clean up and
break down the demonstration station afterwards, and take out the accumulated
trash.
In
January 1998, while working as a demonstrator, plaintiff’s knee collapsed as
she stooped to place food into a microwave. Defendant then moved plaintiff to a
non-cooking position, albeit one which still required standing, reaching and
lifting. The Commission made the following finding:
11. The
plaintiff testified that her job as a non-cooking demonstrator exceeded her
physical limitations and light duty restriction. However, the plaintiff was
offered help by the preparation people to assist her in tearing down and
setting up for her demonstrations. There are generally two prep people
available. The plaintiff declined this help indicating that she did not want to
be a strain on the team and that if a 60-year-old prep person could do it, she
could do it.
Testimony also showed that plaintiff felt
embarrassed about her physical limitations and about being paid $11.40 per
hour, when other demonstrators earned only $8.00 to $9.00 per hour. Plaintiff
discussed her new position with her physician, who re-emphasized that she
needed a sedentary job. Defendant’s sales manager agreed that the job
description presented for approval by plaintiff’s physician was not accurate
because it did not indicate that the job required lifting, squatting, kneeling
and prolonged standing.
Following
continued complaints of pain in her knee, arm, shoulder and neck, plaintiff’s
physician advised her that she would either need to quit work or work in pain.
Plaintiff continued to be seen by physicians for the injuries to her knee,
receiving a permanent partial impairment rating of seven percent to her left
leg. Plaintiff also continued treatment for injuries to her right arm and
shoulder, eventually being diagnosed with carpal tunnel and impingement
syndromes. As a result of those injuries, plaintiff’s physician removed her
from work until they could be resolved surgically. Plaintiff remains out of
work, contending that the demonstrator job assigned to her by defendants was
not suitable given her restrictions.
Plaintiff
first contends that the Industrial Commission erred in failing to make findings
of fact on the issue of suitability of the jobs to which she returned on 7
September 1997 following her injury. Because the Commission’s opinion and award
fails to make any findings about the suitability of plaintiff’s post-injury
jobs, as required for its determination, we remand for findings on that issue.
Prior
to the hearing before the deputy commissioner, the parties stipulated that one
of the issues before the Commission was whether plaintiff is “entitled to
payment of temporary partial disability from September 9, 1997 to the present
and continuing.”. Under the Workers’ Compensation Act, disability is defined by
a diminished capacity to earn wages, not by physical infirmity alone. N.C. Gen.
Stat. §97-2(9) (1995). Findings about the plaintiff’s ability to earn wages in
the competitive job market are necessary for the Commission to determine her
earning capacity which, in turn, is necessary for a determination of
entitlement to temporary partial disability under N.C. Gen. Stat. §97-30. Saums
v. Raleigh Community Hosp., 346 N.C. 760, 765, 487 S.E.2d 746, 750 (1997).
In order to determine whether the benefits for the seven percent rating are the
more munificent remedy, the Commission must address the plaintiff’s loss of
wage-earning capacity, if any. See Knight v. Wal-Mart, 149 N.C. App. 1,
562 S.E.2d 434 (2002), affirmed per curiam, 357 N.C. 54, 577 S.E.2d 620
(2003).
“[A]n
injured employee’s earning capacity must be measured not by the largesse of a
particular employer, but rather by the employee’s own ability to compete in the
labor market.” Peoples v. Cone Mills Corp., 316 N.C. 426, 437, 342
S.E.2d 798, 805 (1986). Thus, “the fact that an employee is capable of
performing employment tendered by the employer is not, as a matter of law, an
indication of plaintiff’s ability to earn wages.” Saums, 346 N.C. at
764, 487 S.E.2d at 750. As our Supreme Court has explained:
Proffered
employment would not accurately reflect earning capacity if other employers
would not hire the employee with the employee’s limitations at a comparable
wage level. The same is true if the proffered employment is so modified because
of the employee’s limitations that it is not ordinarily available in the
competitive job market. The rationale behind the competitive measure of earning
capacity is apparent. If an employee has no ability to earn wages
competitively, the employee will be left with no income should the employee’s
job be terminated.
Peoples, 316 N.C. at 438, 342 S.E.2d at 806; see also Kisiah v.
Kisiah Plumbing, Inc., 124 N.C. App. 72, 476 S.E.2d 434 (1996), disc.
review denied 345 N.C. 343, 483 S.E.2d 169 (1997). Thus, in order to make
the necessary findings about plaintiff’s earning capacity, the Commission must
first make findings about whether the job offered by defendant to plaintiff
accurately reflects her ability to earn wages in the competitive marketplace.
During
the hearing, plaintiff presented medical records, and testimony from herself
and from Michael Travelstead (“Travelstead”), a sales manager working for
defendant, tending to show that jobs plaintiff held following her injury were
not suitable given her medical restrictions. The defendants prepared job
descriptions for the positions of credit membership table telemarketer and
demonstrator, each of which plaintiff’s physician approved for her. Plaintiff
first undertook the job at the credit membership table, which she believed she
was able to perform. However, when defendant eliminated that position 25
December 1997, plaintiff began work as a demonstrator. Travelstead testified
that the job description he had prepared for plaintiff’s physician did not
accurately present the true physical requirements of the demonstrator position.
In addition, plaintiff presented evidence that she was paid $11.40 per hour for
her work, while other demonstrators earned only $8.00 to $9.00 per hour, and
that defendant offered her assistance to permit her to perform this work.
The
Commission failed to make any findings about the suitability of plaintiff’s
post-injury employment by defendant. Because these findings were necessary in
order for the Commission to determine whether plaintiff was entitled to
temporary partial disability compensation, and whether those benefits or the
benefits for the rating were more generous, we remand to the Commission to
address these factual issues, and then draw appropriate conclusions.
Plaintiff
next argues that the Industrial Commission erred in making findings and
reaching conclusions that go against the greater weight of the evidence on the
issue of whether plaintiff’s arm, shoulder and neck injuries are compensable.
Because the Commission is the sole judge of credibility of the witnesses and
the weight to be given their testimony, we overrule this assignment of error.
We
do “not have the right to weigh the evidence and decide the issue on the basis of
its weight.” Deese v. Champion Int’l Corp., 352 N.C. 109, 115, 530
S.E.2d 549, 552 (2000) (quoting Anderson v. Lincoln Constr. Co., 265
N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). Our “duty goes no further than to
determine whether the record contains any evidence tending to support the
finding.” Id. “[A]ppellate courts reviewing Commission decisions are
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.” Id. at 116, 530 S.E.2d at 553.
The
evidence before the Commission included the report of Dr. James A. Nunley, a
physician who evaluated plaintiff at the Commission’s request. Dr. Nunley’s
report stated that plaintiff’s “neck injury is not related to her workmen’s
compensation fall nor is her shoulder injury.” Because this evidence before the
Commission supports its findings, they are conclusive on appeal, and these
findings in turn support the Commission’s conclusions regarding the causation
of plaintiff’s arm, shoulder and neck injuries.
Remanded
for additional findings and conclusions.
Judges
MCGEE and CALABRIA concur.