1. Workers' Compensation--refusal of job offer after injury--
justified
The Industrial Commission did not err by finding that
plaintiff was justified in refusing a job offered her by
defendant after her carpal tunnel surgery where the Commission
was presented with evidence that the job consisted of highly
repetitive motions involving the hand and wrist which were not
within the limitations imposed by plaintiff's physician and found
no evidence that any modifications to the job were ever
communicated to plaintiff or her physician.
2. Workers' Compensation--disability--failure of defendant to
meet burden
The Industrial Commission did not err in a workers'
compensation action by finding that plaintiff was entitled to
ongoing total disability compensation where the Commission
properly concluded that defendant failed to meet its burden of
establishing that suitable jobs were available considering
plaintiff's physical and vocational limitations, that plaintiff
was capable of earning wages, or that plaintiff was no longer
disabled.
Randy D. Duncan for plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P, by J.A. Gardner,
III and Dana M. Mango, for defendant-appellant.
WALKER, Judge.
Plaintiff filed a claim to recover benefits for injuries
resulting from her employment with defendant Lane. The deputycommissioner denied the claim; however, the Commission awarded
total disability benefits and remanded the matter to the deputy
commissioner for a “determination of the date of maximum medical
improvement and the permanent partial disability, if any,...”
suffered by plaintiff. Lane appealed to this Court but the appeal
was dismissed as interlocutory pending the remand to the deputy
commissioner. Oliver v. Lane Co., Inc., 123 N.C. App. 354, 473
S.E.2d 693 (1996).
On remand, the deputy commissioner found plaintiff reached
maximum medical improvement on 8 March 1994 and was left with
permanent partial disabilities of ten and fifteen percent in her
right and left hands respectively. On 7 December 1999, the
Commission again reversed the deputy commissioner and ordered that
plaintiff receive “ongoing total disability” until she returned to
work or until further order of the Commission.
The findings of the Commission, in pertinent part, are
summarized as follows: Lane is a furniture manufacturer and
employed plaintiff as a jitterbug sander, a job which involved the
continuous use of a vibrating, handheld sander. After suffering
pain and numbness in her hands, plaintiff was diagnosed with
bilateral carpal tunnel syndrome by Dr. Mark Marchese, a
neurosurgeon in Hickory. Plaintiff underwent carpal tunnel release
surgery on each hand in the Fall of 1993 and was released to return
to light duty work on 29 November 1993. Plaintiff was restricted
from performing repetitive motion work or lifting more than ten
pounds for a period of three months.
Also, on 29 November 1993, Lane sent plaintiff a descriptionof the wipe glaze job which was to be her position upon
her return
to work. The wipe glaze job entailed extensive use of the hands
and wrists including polishing rough spots on furniture with steel
wool, applying glaze, rubbing filler or stain over the furniture
using a brush, cloth or power rubbing tool and rubbing the
furniture to remove excess filler, stain, glaze or washcoat. When
plaintiff returned to work, she refused to perform the wipe glaze
job. The wipe glaze job offered to plaintiff by Lane was not
suitable in that it was not within the physical restrictions
established by Dr. Marchese. The wipe glaze job required
repetitive hand and wrist use, which directly contradicted Dr.
Marchese's recommendation. Plaintiff was unable to perform the
wipe glaze job due to her compensable injury and there was no
credible evidence that any plans for modification of the wipe glaze
job were ever communicated to plaintiff or her treating physician.
Plaintiff was justified in refusing to accept the wipe glaze job
offered her by Lane as it was unsuitable given her physical
condition and limitation resulting from her compensable
occupational disease.
Further, after plaintiff refused the wipe glaze job, she was
terminated from her employment. Thereafter, Lane made no effort to
provide vocational rehabilitation or to help plaintiff locate
suitable employment. Subsequent to her termination, plaintiff
filled out at least one hundred job applications, registered with
the North Carolina Employment Security Commission and received
assistance from North Carolina Vocational Rehabilitation for
approximately four years. In March 1997, plaintiff found work asa cashier at a Food Lion grocery store but was unable to continue
working there after July 1997 because of pain and other symptoms
from her carpal tunnel syndrome.
Based on these findings, the Commission concluded, in part:
2. Plaintiff's employment with defendant-
employer caused, or significantly contributed
to the development of her occupational
disease, carpal tunnel syndrome, and exposed
her to an increased risk of developing this
condition as compared to members of the
general public not so employed. N.C. Gen.
Stat. § 97-53(13).
3. As a result of her occupational disease,
plaintiff was justified in refusing the wipe
glaze position offered by defendant-employer
on 29 November 1993. N.C. Gen. Stat. § 97-32.
4. As defendants failed to produce credible
evidence that suitable jobs are available that
plaintiff is capable of obtaining given her
physical and vocational limitations, or that
plaintiff is otherwise capable of earning
wages; defendants have failed to prove that
plaintiff is no longer disabled. Brown v. S &
N Communications, Inc., 124 N.C. App. 320, 477
S.E.2d [197] (1996).
5. Plaintiff made reasonable efforts to
obtain suitable employment without assistance
from defendant. Plaintiff's trial return to
work as a cashier at Food Lion was
unsuccessful. N.C. Gen. Stat. § 97-32.1. The
wages plaintiff earned at Food Lion are not
indicative of her wage earning capacity. N.C.
Gen. Stat. § 97-30.
The Commission awarded plaintiff ongoing total disability
benefits of $171.57 per week for the periods of 29 November 1993 to
3 March 1997 and from 1 July 1997 until she returns to work.
[1]Lane first contends that the Commission erred in finding
plaintiff was justified in refusing the wipe glaze job offered herby Lane. Lane argues that the job assigned to plaintiff was within
the physical restrictions placed on her and that plaintiff's
physician stated he would have allowed her to attempt the job on a
short-term basis. Lane further points to the testimony of Lane
employees that plaintiff refused the job because it was dirty, she
did not like the supervisor and she wished to return to her old job
as a jitterbug sander. Lane argues this evidence establishes that
plaintiff did not refuse the wipe glaze job for health reasons and
thus it was not a justified refusal.
The standard of review on appeal to this Court from an award
by the Commission is whether there is any competent evidence in the
record to support the Commission's findings and whether those
findings support the Commission's conclusions of law. Lowe v. BE&K
Construction Co., 121 N.C. App. 570, 573, 468 S.E.2d 396, 397
(1996). Therefore, if there is competent evidence to support the
findings, they are conclusive on appeal even though there is
plenary evidence to support contrary findings. Hedrick v. PPG
Industries, 126 N.C. App. 354, 357, 484 S.E.2d 853, 856, disc.
review denied, 346 N.C. 546, 488 S.E.2d 801 (1997).
Here, the Commission found that the wipe glaze job would
require extensive use of the hands and wrists and that such
activity directly contradicted Dr. Marchese's recommendation. In
support of these findings, the Commission was presented with
evidence which showed the wipe glaze job consisted of highly
repetitive motion involving the hand and wrist. Lane's own
description of the job suggested that a constant wiping or rubbingmotion was required. This type of repetitive motion was not within
her physician's limitations and the Commission found no evidence
that any modifications to the job were ever communicated to her or
her physician. Therefore, competent evidence exists to support the
findings of the Commission.
[2]Lane next contends that the Commission erred in finding
plaintiff was entitled to ongoing total disability compensation.
Lane first argues that the Commission erroneously placed the burden
of proof on them and that plaintiff had the burden of proving the
existence of her disability. Further, Lane asserts that plaintiff
did not meet her burden because she failed to show that she was
incapable of obtaining suitable employment and earning wages.
Under the Workers' Compensation Act, a claimant seeking
benefits has the burden of proving disability. Hilliard v. Apex
Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982). However, when
the parties execute a Form 21 that is approved by the Commission,
that initial burden is met by claimant and the burden then shifts
to defendant to disprove plaintiff's disability. Brown v. S & N
Communications, Inc., 124 N.C. App. 320, 477 S.E.2d 197 (1996). In
order to meet that burden, defendant must produce evidence that:
(1) suitable jobs are available for the employee; (2) that the
employee is capable of getting said job taking into account the
employee's physical and vocational limitations; and (3) that the
job would enable the employee to earn some wages. Franklin v.
Broyhill, 123 N.C. App. 200, 472 S.E.2d 382 (1996). In the absence
of such evidence, plaintiff's disability continues until shereturns to work at wages equal to those received at the time of the
injury. Brice v. Sheraton Inn, 137 N.C. App. 131, 527 S.E.2d 323
(2000).
Based on its findings, the Commission properly concluded that
Lane failed to meet its burden of establishing that suitable jobs
were available considering plaintiff's physical and vocational
limitations, that plaintiff was capable of earning wages or that
plaintiff was no longer disabled. The opinion and award of the
Commission is
Affirmed.
Judges HUNTER and CAMPBELL concur.
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