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NO. COA04-1061
NORTH
CAROLINA COURT OF APPEALS
Filed: 1 November 2005
ANNIE P. MONTGOMERY,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C. File No. 871938
TOASTMASTER, INC.,
Employer,
SELF-INSURED, (CORPORATE
CLAIMS MANAGEMENT, Serving Agent),
Defendant.
Appeal by Defendant from opinion and award entered 10 June 2004 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17 May 2005.
The Sumwalt Law Firm,
by Mark T. Sumwalt and Vernon Sumwalt, for plaintiff-appellee.
Cranfill, Sumner &
Hartzog, L.L.P., by Jonathan C. Anders and Meredith T. Black, for
defendant-appellant.
WYNN,
Judge.
In
general, to prove that a disabled employee is employable, an employer must show
that tendered employment accurately reflects the employee’s ability to compete
with others in the job market. Peoples
v. Cone Mills Corp., 316 N.C. 426, 438, 342 S.E.2d 798, 806 (1986). In this case, the employer contends that the
employee’s light-duty work was “suitable” employment. Because the record shows competent evidence supporting the
Commission’s findings of fact that in turn support the conclusions of law that
the tendered employment positions were “make-work”, we affirm the opinion and
award.
Employee,
Annie P. Montgomery (sixty-five years old), worked for Employer, Toastmaster,
Inc., for thirty‑three years in the assembly department. Her work on the assembly line for seventeen
years required gripping and twisting screwdrivers repetitively with both hands;
and, her work with plastic molding for fifteen years required gripping pliers
with both hands to insert crystals and place other components into clocks. Ms. Montgomery estimated that she did this
approximately three thousand times a day when inserting crystals and between
1,200 to 3,000 times a day when handling the other components. After a period of time, she experienced
symptoms of carpal tunnel syndrome in both hands.
As
stipulated to by the parties, Ms. Montgomery sustained a compensable injury by
accident on 2 October 1998. On 21
January 1999, at the recommendation of her physician, Dr. Ward Oakley, Ms.
Montgomery stopped working in the assembly department. Dr. Oakley performed surgery on her left
wrist in January 1999 and on her right wrist in March 1999. He released her to return to work on 1 May
1999, with restrictions to avoid strenuous repetitive use of her hands until 1
June 1999.
While Ms.
Montgomery was out of work from 21 January 1999 through 3 May 1999, Toastmaster
paid Ms. Montgomery temporary disability benefits. During that time, Ms. Montgomery and Toastmaster entered into a
Form 21 agreement approved by the North Carolina Industrial Commission.
On 5 May
1999, Toastmaster provided Ms. Montgomery with light‑duty work in the
subassembly department which included, inter alia, tearing down parts of
clocks for recycling and incorporating the parts into other clocks. All the subassembly tasks required, at some
point, continuous, repetitive, or consistent use of the hands. Ms. Montgomery testified that on certain
business days, she did not have anything to do so she was sent home.
In June
1999, following Dr. Oakley’s advice that she could resume normal activities,
Ms. Montgomery returned to her previous job in the plastic molding
department. However, evidence shows
that Ms. Montgomery’s carpal tunnel symptoms returned in less than an hour of
performing her job duties in the plastic molding department. As a result, Dr. Oakley determined that she
could not perform her previous molding job and placed her on permanent
restriction, which meant she should avoid strenuous or repetitive use of her
hands. Upon returning to work,
Toastmaster again placed her in the subassembly department.
Following
a two week plant inventory shutdown in July 1999, Ms. Montgomery retired at the
age of sixty-two. Ms. Montgomery
testified that she “wanted to continue to work because that was the only income
[she] had, you know. But by [her]
hands getting messed up like they did,
[she] couldn’t see where [she] could continue.” Since July 1999, Ms. Montgomery has not sought other work.
On 21
February 2003, Deputy Commissioner Lorrie L. Dollar denied Ms. Montgomery’s
claim for change of condition and ordered Toastmaster to pay permanent partial
disability compensation to Ms. Montgomery for fifty weeks. In an opinion and award entered 10 June 2004,
the full Commission reversed Deputy Commissioner Dollar and ordered Toastmaster
to pay temporary total disability beginning 21 January 1999, and continuing
until further order and medical expenses.
Toastmaster appealed.
________________________________________
On appeal,
Toastmaster argues that (1) the full Commission’s findings of fact regarding
the nature of Ms. Montgomery’s employment were not supported by competent
evidence; (2) the full Commission erred in concluding that Ms. Montgomery’s
employment was not suitable employment; and (3) the full Commission failed to
consider all competent evidence.
The
standard of review for this Court in reviewing an appeal from the full
Commission is limited to determining “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). Our review “‘goes no further than to
determine whether the record contains any evidence tending to support the
finding.’” Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414
(1998) (citation omitted). The full Commission’s findings of fact “are
conclusive on appeal when supported by competent evidence[,]” even if there is
evidence to support a contrary finding, Morrison v. Burlington Indus.,
304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981), and may be set aside on appeal only
“when there is a complete lack of competent evidence to support them[.]”
Young v. Hickory Bus. Furniture, 353 N.C. 227, 230, 538 S.E.2d 912, 914
(2000). Further, all evidence must be
taken in the light most favorable to the plaintiff, and the plaintiff “is
entitled to the benefit of every reasonable inference to be drawn from the
evidence.” Deese, 352 N.C. at
115, 530 S.E.2d at 553 (citation omitted).
First,
Toastmaster argues that the full Commission’s findings of fact regarding the
nature of Ms. Montgomery’s employment were not supported by any
competent evidence. We disagree.
Toastmaster
assigns error to the following findings of fact:
6. The first subassembly job attempted by plaintiff involved separating parts. This was not a normal job any employee did on a full‑time basis. Plaintiff herself was sent home when there was not separating work to be done. The separating positions were not regular work positions available in the job market but rather were part‑time jobs given to “light‑duty” employees from other departments. While plaintiff was there, there were seven to eight employees in subassembly, and all were under work restrictions of some type.
***
11. When plaintiff returned with her increased
restrictions, she was put back into the “light duty” subassembly area, where
she worked until 4 July 1999 separating parts, punching dials, and applying
labels. During this period, plaintiff
had to search for things to do. This
modified position plaintiff occupied was not a regular full‑time position
available in the competitive job market.
12. Defendant-employer was shut down from 4 July
1999 until 12 July 2002 (sic) for vacation and inventory. As of 12 July 1999, the plaintiff stopped
work after 33 years working for defendant-employer. The plaintiff retired because what they had her doing “was not a
job.” The plaintiff wanted to keep
working, but her physical limitations and pain prevented it.
13. Plaintiff has not worked or earned any wages
since her employment with defendant‑employer ended. Plaintiff has not sought other work due to
her physical restrictions and vocational limitations.
Our
examination of the record on appeal reveals that there is competent evidence to
support finding of fact six. Ms.
Montgomery testified that her first subassembly job involved separating parts
and that Toastmaster sent her home on 5 May 1999, because they had no work for
her to do. Toastmaster also sent her
home early five days in June. Ms.
Montgomery further testified that “[t]here wasn’t enough of parts to separate
all day[,]” and separating parts was not a permanent, full-time job at
Toastmaster, but rather tasks employees performed as needed. Fannie Dockery, foreman at Toastmaster,
testified that separating parts and applying labels was not a full-time
job. Ms. Dockery also testified that
there were seven or eight employees in subassembly, several of those with
repetitive motion restrictions.
Further,
the record shows competent evidence to support finding of fact eleven. Ms. Montgomery testified that when she
returned to work in May 1999, with her light duty restrictions, she separated
parts, punched holes out of dials, and put labels on clocks. Ms. Montgomery also testified that during
this time period there were times when she had nothing to do and her supervisor
would tell her “Well, I’ve got to find you something to do.” She testified that the combination of her
three tasks was not a regular, full-time job.
Ms. Dockery also testified that nobody performed the tasks given to Ms.
Montgomery on a full-time basis.
Additionally,
the record shows competent evidence to support finding of fact twelve. Dana Leviner, HR generalist for Toastmaster,
testified that in July 1999 the plant closed for two weeks for inventory. Ms. Montgomery testified that she “wanted to
continue to work because that was the only income [she] had, you know. But by [her] hands getting messed up like
they did, [she] couldn’t see where [she] could continue.”
Moreover,
the record shows competent evidence to support finding of fact thirteen. Ms. Montgomery testified that she has not
worked since her employment with Toastmaster and has not sought other
employment due to the limitations of her hand and limited education.
Toastmaster
argues that even though Ms. Montgomery’s testimony supports findings of fact
six, eleven, twelve, and thirteen, her testimony is not credible and there is
other evidence that contradicts Ms. Montgomery’s testimony. But the full Commission’s findings of fact
“are conclusive on appeal when supported by competent evidence[,]” even if
there is evidence to support a contrary finding. Morrison, 304 N.C. at 6, 282 S.E.2d at 463. Further, determining credibility of
witnesses is the responsibility of the full Commission, not this Court. Adams, 349 N.C. at 681, 509 S.E.2d at
414. This Court does not re-weigh the
evidence. Id. Therefore, the full Commission’s findings of
fact are binding on appeal.
Next,
Toastmaster argues that the full Commission erred in concluding that Ms.
Montgomery’s employment was not suitable employment and that she is entitled to
ongoing disability benefits. We
disagree.
The record
shows, and it is not disputed by the parties, that Ms. Montgomery met her
burden of proving that she is disabled, i.e., unable to earn wages due to her
disability. As a result, the burden shifted to Toastmaster to show that
Ms. Montgomery was employable which it sought to do by showing that Ms. Montgomery
had been performing on her tendered employment. See Dalton v. Anvil Knitwear, 119 N.C. App. 275, 284, 458
S.E.2d 251, 257, disc. review denied, 341 N.C. 647, 462 S.E.2d 507
(1995). “However, 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
v. Raleigh Cmty. Hosp., 346 N.C. 760, 764, 487 S.E.2d 746, 750 (1997). The tendered employment must accurately
reflect the employee’s ability to compete with others in the job market in
order for the employment to be indicative of an employee’s earning
capacity. Peoples, 316 N.C. at
438, 342 S.E.2d at 806. Thus, “if other
employers would not hire the employee with the employee’s limitations at a
comparable wage level . . . [or] 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 job is “make work” and is not competitive. Id.
The full Commission
concluded that the jobs given to Ms. Montgomery in May and June 1999 were not
suitable jobs and Toastmaster did not meet its “burden of producing evidence
that suitable jobs are available to plaintiff and that the plaintiff is capable
of attaining one given the plaintiff’s age, education, physical limitations,
vocational skills, and experience.”
This conclusion is supported by the full Commission’s findings of fact
that the jobs of separating parts and punching holes on clock dials given to
Ms. Montgomery in May and June 1999, were not full-time jobs at Toastmaster;
the position given to Ms. Montgomery was not a regular, full-time position
offered at Toastmaster; and Toastmaster did not demonstrate that a similar job
was available on the open market. These
findings of fact support the full Commission’s conclusions of law that the jobs
given to Ms. Montgomery were not “suitable” and Toastmaster failed to show that
suitable jobs are available to Ms. Montgomery on the open market. Therefore, the full Commission did not err
in concluding that Ms. Montgomery is entitled to ongoing temporary total
disability compensation.
Finally,
Toastmaster argues that the full Commission failed to consider all competent
evidence. Specifically, Toastmaster
contends that the full Commission did not indicate that it gave proper
consideration to the testimony of four witnesses. However, determining credibility of witnesses is the
responsibility of the full Commission, not this Court. Adams, 349 N.C. at 681, 509 S.E.2d at
414. This Court does not re-weigh the
evidence. Id. Furthermore, “the Commission does not have
to explain its findings of fact by attempting to distinguish which evidence or
witnesses it finds credible.” Deese,
352 N.C. at 116, 530 S.E.2d at 553. Accordingly,
we must hold that this argument is without merit.
AFFIRMED.
Judges
BRYANT and JACKSON concur.