Workers' Compensation_-disability_-laid off
The Industrial Commission did not err in a workers' compensation case by concluding
that plaintiff is not currently disabled as a result of his prior injuries and by denying plaintiff
further compensation, because: (1) plaintiff was physically able to perform his former job and
would have returned to those duties if he had not been laid off due to an economic downturn; and
(2) plaintiff's lack of employment was not due to his injuries.
The McGougan Law Firm, by Paul J. Ekster and Dennis T. Worley,
for plaintiff-appellant.
Young Moore and Henderson P.A., by Joe E. Austin, Jr. and
Zachary C. Bolen, for defendant-appellees.
THORNBURG, Judge.
Gilberto A. Segovia, Jr. (“plaintiff”) appeals from an opinion
and award of the North Carolina Industrial Commission (the
“Commission”) denying his claim for further compensation. For the
reasons stated herein, we affirm the opinion and award of the
Commission.
The relevant facts and procedural history are summarized as
follows: Plaintiff suffered compensable injuries by accident to
his back and ear while working for defendant J.L. Powell & Company
(“defendant-employer”) on 21 April 2000. Plaintiff missed work for
medical reasons from 22 April 2000 until 18 June 2000. On 19 June2000, plaintiff returned to work for defendant-employer doing light
duty work. Plaintiff eventually resumed his former duties.
Plaintiff was out of work for ear surgery from 13 September 2000
through 21 September 2000. Plaintiff returned to work for
defendant-employer on 22 September 2000 until he was taken out of
work for a second ear surgery on 13 March 2001. Plaintiff's
physician had indicated that plaintiff would be out of work for no
more than a week. However, plaintiff was laid off by
defendant-employer on 14 March 2001 along with eleven other
employees.
Defendants admitted liability for benefits pursuant to a form
60 and paid temporary total disability benefits to plaintiff during
all the periods plaintiff was out of work and continued to do so
after laying him off. After plaintiff was laid off, defendants
filed several form 24 requests to stop payment of compensation
alleging that plaintiff was out of work due to the economy rather
than due to a disability. These requests were denied by the
Commission, and defendants requested a hearing on the matter. On
22 January 2003, a deputy commissioner
entered an opinion and award
concluding that plaintiff's loss of earnings was not due to any
disability arising from the injury and denying further
compensation. Plaintiff appealed to the full Commission, which in
an order entered 23 September 2003, affirmed the decision of the
deputy commissioner. Plaintiff appeals.
The dispositive issue on appeal is whether the full
Commission's findings of fact are supported by the evidence and
whether the findings of fact in turn support the conclusions oflaw. Specifically, plaintiff argues that the full Commission erred
in terminating plaintiff's disability benefits when plaintiff is
still disabled.
On appeal of a workers' compensation decision, we 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." Deese v. Champion
Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). An
appellate court reviewing a workers' compensation claim “does not
have the right to weigh the evidence and decide the issue on the
basis of its weight. The court's duty 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)(quoting Anderson v. Lincoln Constr. Co., 265
N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).
On appeal, plaintiff challenges the following findings of
fact:
7. Plaintiff returned to work for defendant-
employer on June 19 at light duty, where he
just scanned wood for metal. He later
gradually worked back into his regular job,
which he performed satisfactorily without
apparent difficulty. On September 13, 2000 he
went back out of work for his ear surgery and
he returned to work on September 22, 2000.
When he had his second ear operation on March
13, 2001, he again went out of work and was to
be out for no more than a week. Although Dr.
Kenyon released him to return to work on March
19, 2001 without restrictions, his employer
had laid him off, along with 11 other
employees, while he was out with his surgery.
There had been a significant decline in
business, which precipitated the layoff of
employees. Consequently, plaintiff, who was
physically capable of performing his regular
job duties, was unable to return to work inhis former position. The only other time
plaintiff was kept out of work due to
disability from his injury was on September 6,
2001 when he had the last operative procedure
to his ear. Dr. Kenyon advised the caseworker
that there would only be one day, the day of
surgery, where plaintiff would be unable to
work due to that procedure.
. . . .
10. Plaintiff has been physically capable of
performing his regular job with defendant-
employer since late September 2000, except for
two very short periods associated with the
outpatient ear procedures by Dr. Kenyon in
March and September 2001. Had it not been for
the reduction in business associated with the
company-wide layoffs due to the economic
downturn, he would have returned to work for
defendant-employer after each of those
procedures. The greater weight of the
evidence establishes that the plaintiff's
inability to earn wages since March 2001 was
due to the layoff and plaintiff's lack of
interest in returning to work, and not due to
any disability associated with plaintiff's
injury. In addition, despite plaintiff's lack
of enthusiasm for obtaining another job,
plaintiff could have been earning wages in at
least one part-time job that was specifically
offered to him by a local grocery store. The
evidence establishes that work was available
which was suitable for plaintiff, including
positions as a bus boy, a kitchen helper, an
office cleaner, and as a stocker at other
grocery stores. Moreover, the evidence
establishes that plaintiff appeared to be
trying to sabotage efforts to find alternative
employment. Finally, plaintiff had no
driver's license due to his illegal status.
This created an additional barrier to
plaintiff's finding and attending work.
Competent evidence supports these findings of fact. The owner of
defendant-employer, John Fisher, provided testimony at the hearing
that supports the finding that plaintiff performed his job
satisfactorily and was laid off because of a decline in business.
Plaintiff and defendants stipulated plaintiff had no restrictionsdue to his ear injury after 18 March 2001. The deposition of
caseworker Carlos Encinas supports the findings pertinent to
plaintiff's vocational rehabilitation and employment prospects.
Having concluded that the evidence supports the findings of
fact challenged by plaintiff, we next address whether the findings
were sufficient to support the Commission's conclusion of law that
plaintiff is not currently disabled as a result of his prior
injuries.
[T]he 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.
Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 707, 599
S.E.2d 508, 513 (2004). In the case at bar, the full Commission
found that plaintiff was physically able to perform his former job
and would have returned to those duties if he had not been laid off
due to an economic downturn. Moreover, the full Commission found
that plaintiff's lack of employment was not due to his injuries.
These findings support the full Commission's conclusion that
plaintiff's earning capacity is not currently affected by the
injuries he suffered to his back and ear. Therefore, we conclude
that the full Commission did not err in concluding that plaintiff
is not currently disabled as a result of his injuries and thus, in
denying plaintiff further compensation. As this issue is
dispositive, we need not address plaintiff's remaining arguments.
Affirmed. Judges GEER and LEVINSON concur.
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