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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.
JAMES W. WHITE, Employee, Plaintiff, v. WEYERHAEUSER COMPANY,
Employer, SELF-INSURED, Defendant
Filed: 4 January 2005
1. Appeal and Error--preservation of issues_-failure to raise sufficiency of evidence--
findings of fact binding
Defendant employer failed under both the former and current Rules of Appellate
Procedure to raise on appeal the sufficiency of the evidence to support the Commission's
findings of fact, and therefore, the findings of fact are binding on appeal. N.C. R. App. P.
2. Workers' Compensation--refusal of suitable employment-_involuntary resignation
The Industrial Commission did not err in a workers' compensation case by failing to
conclude that plaintiff employee refused suitable employment pursuant to N.C.G.S. § 97-32
based on plaintiff's tendering his resignation, because: (1) plaintiff's conduct did not constitute
constructive refusal of employment when the Commission found that plaintiff did not voluntarily
resign from his employment, and thus his termination from employment must be analyzed
pursuant to Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228 (1996); (2) when an
employee resigns in the face of imminent termination of his employment, the Commission may
conclude that the employee's employment ended involuntarily but it does not have to do so if it
does not believe that the resignation was in fact forced by the employer's termination decision;
(3) evidence supports plaintiff's assertion that he was going to be fired since defendant failed to
properly assign error to the Commission's findings of fact; and (4) the evidence does not show
that plaintiff was terminated for misconduct or fault, unrelated to the compensable injury, for
which a nondisabled employee ordinarily would have been terminated.
3. Workers' Compensation--temporary total disability--partial disability
The Industrial Commission did not err by awarding plaintiff worker temporary total
disability benefits from 26 July 2001 through 7 January 2002 and partial disability benefits
beginning 8 January 2002, because: (1) 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; (2) any claim that there is no disability if the employee is receiving the
same wages in the same or other employment is correct only so long as the employment reflects
the employee's ability to earn wages in the competitive market; (3) absence of medical evidence
does not preclude a finding of disability; and (4) there was competent evidence in the record to
support the Commission's finding that plaintiff had demonstrated a reduced wage earning
Appeal by defendant from Opinion and Award filed 14 July 2003
by the North Carolina Industrial Commission. Heard in the Court of
Appeals 27 May 2004.
Kellum Law Firm, by J. Kevin Jones, for plaintiff-appellee.
Ward and Smith, P.A., by S. McKinley Gray, III and James R.
Cummings, for defendant-appellant.
Defendant Weyerhaeuser Company appeals from the Full
Commission's Opinion and Award awarding temporary disability
benefits to plaintiff James W. White. Weyerhaeuser argues
primarily that White's resignation of his position with
Weyerhaeuser precluded any award of disability benefits. Because
the Commission found that White's resignation was not voluntary,
but rather was in response to Weyerhaeuser's expressed intent to
terminate his employment, we hold that the Commission properly
analyzed this case under Seagraves v. Austin Co. of Greensboro, 123
N.C. App. 228, 472 S.E.2d 397 (1996).
Standard of Review
In reviewing a decision by the Commission, this Court's role
"is limited to determining whether there is any competent evidence
to support the findings of fact, and whether the findings of fact
justify the conclusions of law." Cross v. Blue Cross/Blue Shield,
104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). Under
N.C.R. App. P. 10(a), our review is further limited to those
findings of fact and conclusions of law properly assigned as error.
 In this case, apparently operating based on an outdated
version of our Appellate Rules, Weyerhaeuser has assigned error
only to certain conclusions of law, but under each of the
assignments of error has listed "Defendant's Exception[s],"
referring to "exception[s]" typed onto a copy of the Commission's
Opinion and Award. Nowhere in Weyerhaeuser's assignments of erroror in the typewritten exceptions does the company state any
specific reason that the findings of fact are in error.
The former version of Rule 10 of our Rules of Appellate
Procedure "require[d] that all assignments of error should be
followed by a listing of the exceptions on which they are based,
and that these exceptions should be identified by the pages of the
record at which they appear." Peoples Serv. Drug Stores, Inc. v.
Mayfair, N. V. (Micora, N. V.), 50 N.C. App. 442, 446, 274 S.E.2d
365, 368 (1981). It appears that Weyerhaeuser has adhered to the
procedure set forth in this older version of the Rule.
In 1988, Rule 10 was amended "to put an end to the formality
of marking exceptions in the transcript of the proceedings as
formerly required by Rule 10(b)(2). Accordingly, the language of
the former Rule 10(b)(2), requiring that the record on appeal
reflect a separate exception for each finding of fact assigned as
error, was deleted from the current version of Rule 10(b)(2)."
State v. Canady, 330 N.C. 398, 404-05, 410 S.E.2d 875, 879 (1991)
(Meyer, J., dissenting). The current Rule 10 provides:
A listing of the assignments of error upon
which an appeal is predicated shall be stated
at the conclusion of the record on appeal, in
short form without argument, and shall be
separately numbered. Each assignment of error
shall, so far as practicable, be confined to a
single issue of law; and shall state plainly,
concisely and without argumentation the legal
basis upon which error is assigned. An
assignment of error is sufficient if it
directs the attention of the appellate court
to the particular error about which the
question is made, with clear and specific
record or transcript references. Questions
made as to several issues or findings relating
to one ground of recovery or defense may be
combined in one assignment of error, ifseparate record or transcript references are made.
N.C.R. App. P. 10(c)(1).
Under this rule, an appellant is required to specifically
assign error to each finding of fact that it contends is not
supported by competent evidence. "[F]indings of fact to which [an
appellant] has not assigned error and argued in his brief are
conclusively established on appeal." Static Control Components,
Inc. v. Vogler, 152 N.C. App. 599, 603, 568 S.E.2d 305, 308 (2002).
Thus, "[a] single assignment [of error] generally challenging the
sufficiency of the evidence to support numerous findings of fact .
. . is broadside and ineffective" under N.C.R. App. P. 10. Wade v.
Wade, 72 N.C. App. 372, 375-76, 325 S.E.2d 260, 266, disc. review
denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Since Weyerhaeuser
has failed to challenge the sufficiency of the evidence to support
the Commission's specific findings of fact, they are binding on
appeal under the current rules.
In any event, a review of older cases applying the former
rules reveals that, even under those rules, Weyerhaeuser has failed
to properly present for appellate review the adequacy of the
evidence to support the Commission's findings of fact. Under the
former procedure, when, as here, assignments of error challenged
only a conclusion of law, but listed under those assignments of
error exceptions to specific findings of fact, the assignments of
error "raise[d] only the question whether the facts found support
the judgment, or whether error of law appears on the face of the
record." Jewel Box Stores Corp. v. Morrow, 272 N.C. 659, 662, 158
S.E.2d 840, 842 (1968). See also Dobias v. White, 240 N.C. 680,689, 83 S.E.2d 785, 791 (1954) (appellant required to list a
separate assignment of error for each finding of fact that
appellant contends was not supported by evidence).
Weyerhaeuser has thus failed under both the former and current
rules to raise on appeal the sufficiency of the evidence to support
the Commission's findings of fact. The Commission's findings of
fact are, therefore, binding on appeal.
White began working for Weyerhaeuser as a utility person on 15
August 1988. He received several promotions and in December 2000
held the position of night shift lead maintenance technician at
Weyerhaeuser's New Bern sawmill plant. On 12 December 2000, White
was working on a ladder when the ladder shook underneath him and he
fell. He twisted his body and reached behind him with his right
arm in an attempt to catch himself as he hit the floor. The safety
incident investigation report stated that the cause of the accident
was an insecure grip or hold and defective or unsafe equipment; it
also noted that the floor had rain, oil, and grease on it.
Immediately after his fall, White's right thumb was bleeding
and his right arm was numb. Since the plant nurse did not work
during the night shift, White's shift supervisor, Don O'Neal,
wrapped the thumb to stop the bleeding and had White sit in the
office for the remaining three hours and 45 minutes of the shift.
The Commission found that O'Neal filled out an incident report, but
denied White's request for immediate medical treatment for his
shoulder and thumb. After White's shift ended at 6:00 or 7:00 a.m., he went home
and slept. When he awoke at 1:00 p.m., his thumb was still
bleeding and his shoulder was sore. White went to Eastern Carolina
Internal Medicine Urgent Care, the medical facility designated by
Weyerhaeuser in its policy handbook for treatment of work-related
injuries. White received stitches in his thumb and pain medication
for his shoulder.
On 13 December 2000, White received a letter of reprimand,
labeled as a "Group II" violation, from his supervisor Buddy Taylor
for "failure to obey written or oral instructions" and for engaging
in horseplay. White testified he received the reprimand because he
did not notify Taylor or Jean Matthews, a human resources employee,
of the accident and because he went to the doctor without first
going to the company nurse.
The New Bern sawmill plant rules divide rule violations into
two types _ Group I or Group II _ based on the seriousness of the
offense. Group I violations are subject to progressive discipline,
including: (1) an oral warning, (2) a written reprimand, (3) a
three-day layoff and final warning, and (4) a suspension followed
by further disciplinary action, up to and including discharge.
Group II violations are subject only to step 4.
White returned to work at Weyerhaeuser on light duty, but his
shoulder continued to hurt. In early February 2001, he was
referred to Dr. Mark Wertman, an orthopedic surgeon, who ordered an
MRI on White's shoulder. The MRI revealed that White had a torn
rotator cuff. On 30 March 2001, Dr. Wertman performed successful
surgery on White's shoulder to repair the torn rotator cuff. Weyerhaeuser admitted compensability of White's injury by filing a
Form 60 ("Employer's Admission of Employee's Right to Compensation
Pursuant to NC Gen. Stat. § 97-18(b)") on 11 April 2001.
After the surgery, White initially was unable to work and
received temporary total disability benefits. Weyerhaeuser wrote
Dr. Wertman correspondence within one week of the surgery
requesting that White be returned to light duty work. White
returned to work on 9 April 2001, again on a light duty basis, with
restrictions on driving, lifting, and using his right arm. On 14
June 2001, Dr. Wertman advised White to do no overhead lifting and
to lift a maximum of 15 pounds at waist level.
In June 2001, White received a second reprimand for a Group II
violation for failure to obey written or oral instructions. White
testified that he received the reprimand for leaving a message with
his supervisor, Buddy Taylor, rather than speaking with him
personally to request time off to take care of affairs related to
the death of his father. White received approved leave to be with
his father in the week preceding his father's death. Upon his
father's death, he spoke with his unit leader at the plant, seeking
additional time. White testified that he believed a unit leader
had the authority to grant such leave and that the leave had been
granted. The Commission found (1) that Weyerhaeuser presented no
evidence to show that White's beliefs in this regard were incorrect
and (2) that the agreement between Weyerhaeuser and the union does
not specify notification requirements for funeral leave apart from
requiring proof of a relationship with the deceased. When White
returned to work, he presented Taylor with his father's obituary,but Taylor required that he obtain his father's hospital records in
order to be paid for the leave.
As White's shoulder continued to improve, he was allowed to
use it more at work, and his hours gradually increased. White's
restrictions were changed to permit lifting of 25 pounds at waist
level by 10 July 2001. The Commission found that in July 2001,
White was able to resume his normal work hours and earn his former
wages. Weyerhaeuser, however, continued to provide him with a
helper to assist him with tasks he was unable to perform.
On 25 July 2001, White was performing maintenance on a sawdust
conveyer along with two other maintenance technicians, Steve Roper
and Felicia James. Weyerhaeuser had a "lockout" safety procedure
that required each employee performing maintenance on equipment to
place his or her personal padlock on the power control device for
the equipment in order to prevent the equipment from being turned
on. After White and the other technicians had finished tightening
the chains on the conveyor, a lead person, Milton Craft, approached
and asked them to remove their locks from the conveyor's power
control device. White and Roper removed their locks and were
waiting for James to return and remove her lock. While they were
waiting, Taylor approached White and asked what they were doing.
When White told him that they had been tightening the conveyor
chains, Taylor asked how tight the chain was. White reached into
the machine and shook the chain to demonstrate. White testified
that the machine could not have been operated at the time because
James' lock, which was in full view of White and Taylor, was still
on the power control device. Although Taylor made no objection at the time, he returned an
hour later and informed White that when he reached into the machine
without his lock being on the machine, he had committed a "lockout
violation." White, who was a member of Local 1325 of the Paper,
Allied-Industrial, Chemical and Energy Workers International Union
AFL-CIO, filed a grievance with the union.
The day after the "lockout violation," White was called in to
talk to his union president and shop steward. They notified him
that Weyerhaeuser was going to send him home and terminate him for
having received three Group II violations. Under the issue
resolution procedure clause of the agreement between Weyerhaeuser
and the union, the union shop steward was involved in negotiating
grievances and received copies of all reprimands. The union
representatives advised White that it would be in his interest to
resign rather than have a termination on his record. Based on this
advice, White tendered a letter of resignation to Weyerhaeuser on
the same day.
White had been employed at Weyerhaeuser for 12 years prior to
his injury, and in that time, he had received only one reprimand.
In the seven months following his injury, White received two Group
II reprimands and anticipated a third Group II reprimand on the day
he resigned. The Commission found that no evidence was presented
to show that a nondisabled employee would have been reprimanded for
After he resigned, White began looking for other work. For
approximately five months, White applied for various jobs, both
directly and through the Employment Security Commission. Some ofthe companies informed him that they did not have any work for him
because he was still on light-duty restrictions.
Dr. Wertman released White from his care on 22 October 2001,
concluding that he had reached maximum medical improvement with a
five percent impairment of his right arm and no impairment of his
thumb as a result of the accident. White was unable to find
employment until 8 January 2002, when he began working for Kopeland
Construction Company at $8.00 per hour as a general laborer. White
left Kopeland for a permanent job with E & J Automotive, also at
$8.00 per hour, where he remained employed as of the hearing before
the Deputy Commissioner. The Commission found that "[b]oth jobs
paid considerably lower wages than he had earned while working for
After White's resignation, Weyerhaeuser refused to pay
temporary total disability benefits, and White requested that his
claim be assigned for hearing. On 29 August 2002, Deputy
Commissioner Morgan S. Chapman filed an Opinion and Award denying
White's claim for additional compensation. White appealed to the
Full Commission. In an Opinion and Award filed on 14 July 2003,
the Commission concluded that as a result of his compensable injury
by accident, White was disabled and was entitled to compensation
for total disability benefits for the period between 26 July 2001
and 7 January 2002 and for partial disability benefits beginning 8
January 2002 and continuing for 300 weeks from the date of injury
or until White began earning the same wage as he made on 12
December 2000. Weyerhaeuser filed timely notice of appeal to this
 Weyerhaeuser contends that the Full Commission erred in
failing to conclude that by tendering his resignation, White
refused suitable employment pursuant to N.C. Gen. Stat. § 97-32
(2003). That section provides:
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
N.C. Gen. Stat. § 97-32. "The burden is on the employer to show
that plaintiff refused suitable employment." Gordon v. City of
, 153 N.C. App. 782, 787, 571 S.E.2d 48, 51 (2002).
In applying the statute, the first question is whether the
plaintiff's employment was voluntarily or involuntarily terminated.
If the termination is voluntary and the "employer meets its burden
of showing that a plaintiff unjustifiably refused suitable
employment, then the employee is not entitled to any further
benefits under N.C. Gen. Stat. §§ 97-29 or 97-30." Whitfield v.
Lab. Corp. of Am.
, 158 N.C. App. 341, 354-55, 581 S.E.2d 778, 787
(2003). If the departure is determined to be involuntary, the
question becomes whether the termination amounted to a constructive
refusal of suitable work under Seagraves v. Austin Co. of
, 123 N.C. App. 228, 472 S.E.2d 397 (1996).
(See footnote 1)
As this Court explained in Seagraves
: [W]here an employee, who has sustained a
compensable injury and has been provided light
duty or rehabilitative employment, is
terminated from such employment for misconduct
or other fault on the part of the employee,
such termination does not automatically
constitute a constructive refusal to accept
employment so as to bar the employee from
receiving benefits for temporary partial or
total disability. Rather, the test is whether
the employee's loss of, or diminution in,
wages is attributable to the wrongful act
resulting in loss of employment, in which case
benefits will be barred, or whether such loss
or diminution in earning capacity is due to
the employee's work-related disability, in
which case the employee will be entitled to
benefits for such disability.
123 N.C. App. at 233-34, 472 S.E.2d at 401. In cases involving an
involuntary termination, "the employer must first show that the
employee was terminated for misconduct or fault, unrelated to the
compensable injury, for which a nondisabled employee would
ordinarily have been terminated." Id.
at 234, 472 S.E.2d at 401.
If the employer meets its burden, "the employee's misconduct will
be deemed to constitute a constructive refusal to perform the work
provided and consequent forfeiture of benefits for lost earnings,
unless the employee is then able to show that his or her inability
to find or hold other employment of any kind, or other employment
at a wage comparable to that earned prior to the injury, is due to
the work-related disability." Id.
Weyerhaeuser argues that Seagraves
is inapplicable in this
case because White was not terminated, but rather voluntarily
resigned. Because Weyerhaeuser bore the burden of proving that
White refused suitable employment, it bore the burden of proving
that White rejected his job by voluntarily resigning. Weyerhaeuser
chose not to offer any evidence on this issue, but rather to relyonly on cross-examination of White. After reviewing the evidence,
the Commission rejected Weyerhaeuser's factual contentions and
found that White's termination of employment was not voluntary:
29. Plaintiff reported for work on July
26, 2001 and was approached by the union
president and union shop steward who informed
plaintiff that he was to be sent home and then
terminated for having received three Group II
violations. Under the Issue Resolution
Procedure Clause of the Agreement between
Weyerhaeuser New Bern Sawmill and AFL-CIO, the
shop steward was involved in negotiating
disputes and copies of reprimands were
provided to the union.
30. Plaintiff testified that he was
advised by his union president and the shop
steward that in lieu of having a termination
on his record, it would be preferable for
plaintiff to resign.
. . . .
32. On July 26, 2001, plaintiff
submitted a written resignation to defendant.
Plaintiff testified that he resigned based
upon what his union representatives advised
him to do.
. . . .
42. Plaintiff reasonably believed that
he was to be terminated based upon the
information he was given by the union
president and union shop steward and he
reasonably relied on that information as the
bases for his resignation. Plaintiff's belief
that termination was imminent was not rebutted
by defendant at the hearing before Deputy
Commissioner Chapman. The Full Commission
finds that plaintiff's termination of
employment was not voluntary, but rather was
predicated on information from his union
officials, as well as the witness report filed
by his supervisor and his previous reprimands.
Since Weyerhaeuser did not properly assign error to these findings,
they are binding on appeal. The question remains whether these
findings support the Commission's conclusion that "[p]laintiff didnot voluntarily resign from his employment on July 26, 2001, and
thus his termination from employment must be analyzed pursuant to
Seagraves v. Austin Co. of Greensboro . . . ."
Weyerhaeuser urges this Court to hold that Seagraves cannot
ever apply when an employee has resigned. To do so would be to
exalt form over substance in a manner inconsistent with the
underlying purpose of the Workers' Compensation Act to "provide
compensation to workers whose earning capacity is diminished or
destroyed by injury arising from their employment." Seagraves, 123
N.C. App. at 233, 472 S.E.2d at 401. We hold that when an employee
resigns in the face of imminent termination of his or her
employment, the Commission may conclude that the employee's
employment ended involuntarily.
While our appellate courts have not previously addressed this
issue in the workers' compensation context, we find guidance in
opinions construing our unemployment statutes. Under the
Employment Security Act, an employee is disqualified from receiving
unemployment benefits if he or she leaves work voluntarily without
good cause attributable to the employer. N.C. Gen. Stat. § 96-
14(1) (2003). In In re Werner, 44 N.C. App. 723, 727, 263 S.E.2d
4, 7 (1980), this Court held that an employee's departure was not
voluntary when she chose to resign rather than be terminated.
Similarly, in Bunn v. N.C. State Univ., 70 N.C. App. 699, 704, 321
S.E.2d 32, 35 (1984), disc. review denied, 313 N.C. 173, 326 S.E.2d
31 (1985), this Court held that a resignation was not voluntary
when the plaintiff resigned in the face of the employer's decisionto terminate her at a later date because of her inability to
perform the job. This Court reasoned:
Although [plaintiff] did have to make the
ultimate choice not to return to work, still
we cannot say that her decision was entirely
free, or spontaneous. We agree with the court
in Dept. of Labor and Industry v. Unemployment
Compensation Board of Review (In Re John
Priest), 133 Pa. Super. 518, 3 A. 2d 211
(1938), that an individual's decision to leave
work when informed of an imminent discharge or
layoff is a consequence of the employer's
decision to discharge and is not wholly
Bunn, 70 N.C. App. at 702, 321 S.E.2d at 34. See also In re
Poteat, 319 N.C. 201, 205, 353 S.E.2d 219, 222 (1987) ("'[A]n
employee has not left his job voluntarily when events beyond the
employee's control or the wishes of the employer cause the
termination.'" (quoting Eason v. Gould, Inc., 66 N.C. App. 260,
262, 311 S.E.2d 372, 373 (1984), aff'd by equally divided court,
312 N.C. 618, 324 S.E.2d 223 (1985))).
We believe that this analysis is equally appropriate in the
workers' compensation context. If an employee resigns his job in
the face of an imminent dismissal, then the Commission may
reasonably find that the resignation is involuntary, as it did
here. It is not, however, required to do so if it does not believe
that the resignation was in fact forced by the employer's
This approach is consistent with the policies underlying the
Workers' Compensation Act. There is no question that had White
waited until Weyerhaeuser actually fired him, then the Commission
could still have awarded benefits under the Seagraves test even if
the termination was justified by misconduct. McRae, 358 N.C. at495, 597 S.E.2d at 700. An employee may, however, wish to resign
and preserve an otherwise positive work record rather than wait for
an inevitable firing that could make it much more difficult to find
other employment. See Thomas v. D.C. Dep't of Labor, 409 A.2d 164,
170 (D.C. 1979) (noting "[i]t is unquestionably true" that an
employee, facing an imminent termination, reaps a benefit by
quitting and "hav[ing] a less-than-perfect work record erased").
Weyerhaeuser would have us hold that by choosing to resign in order
to enhance his employability, White should be completely blocked
from receiving benefits, even though had he waited for the
inevitable firing, he would still be eligible for benefits. We
cannot see how making this distinction is consistent with the
policies underlying the Workers' Compensation Act. Cf. Werner, 44
N.C. App. at 727, 263 S.E.2d at 7 ("Perceiving that well-
intentioned employers may prefer to allow the unsuitable employee
the dignity of resignation, we believe that there are strong public
policy reasons for not discouraging employers from exercising this
Weyerhaeuser also argues that there was no evidence in the
record to support a finding that it was going to terminate White's
employment. Since Weyerhaeuser did not object to White's testimony
regarding what the union officials told him Weyerhaeuser had
decided, that evidence supports White's assertion that he was going
to be fired. Weyerhaeuser offered no contrary evidence even though
the relevant decisionmaker was present and could have testified.
(See footnote 2)
Instead, Weyerhaeuser asked the Commission to infer that White's
resignation was premature from White's general testimony regarding
company policies. This inference necessitated a leap that the
Commission was not required to make. Norman v. N.C. Dep't of
Transp., 161 N.C. App. 211, 224, 588 S.E.2d 42, 51 (2003) ("The
decision regarding which inference to draw was for the Commission
and may not be overturned on appeal."), appeal dismissed and disc.
review denied, 358 N.C. 235, 595 S.E.2d 153, cert. denied, 358 N.C.
545, 599 S.E.2d 404 (2004). In any event, since Weyerhaeuser
failed to properly assign error to the Commission's findings of
fact, this issue is not before us.
Since the Commission found White's resignation to be
involuntary, it properly analyzed the case under Seagraves. When
applying the Seagraves test:
the Commission must determine first if the
employer has met its burden of showing that
the employee was terminated for misconduct,
that such misconduct would have resulted in
the termination of a nondisabled employee, and
that the termination was unrelated to the
employee's compensable injury. Assuming the
employer has satisfied such burden, the
Commission must then determine if the employee
has demonstrated that her inability to perform
work assignments for the employer, or to
procure commensurate work from other
prospective employers, is a consequence of her
McRae, 358 N.C. at 496-97, 597 S.E.2d at 701. The Commission
concluded here that "[t]he evidence in this case does not show that
plaintiff was terminated for misconduct or fault, unrelated to the
compensable injury, for which a nondisabled employee ordinarly
[sic] would have been terminated. . . . Therefore, plaintiff's
conduct does not constitute a constructive refusal of employment." Since Weyerhaeuser has not challenged this conclusion in its brief
or assigned error to the underlying findings of fact, we affirm the
Commission's determination that plaintiff did not constructively
refuse employment under N.C. Gen. Stat. § 97-32.
 Weyerhaeuser also contends that the Full Commission erred
in granting White temporary total disability benefits from 26 July
2001 through 7 January 2002 and partial disability benefits
beginning 8 January 2002. The determination that an employee is
disabled is a conclusion of law that must be based upon findings of
fact supported by competent evidence. Hilliard v. Apex Cabinet
, 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982)
In order to support a conclusion of disability, the Commission
(1) that plaintiff was incapable after his
injury of earning the same wages he had earned
before his injury in the same employment, (2)
that plaintiff was incapable after his injury
of earning the same wages he had earned before
his injury in any other employment, and (3)
that this individual's incapacity to earn was
caused by plaintiff's injury.
Under this test, "[t]he burden is on the employee to show that
he is unable to earn the same wages he had earned before the
injury, either in the same employment or in other employment."
Russell v. Lowes Prod. Distribution
, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993).
Weyerhaeuser argues first that the Commission's finding that
"in July 2001, Plaintiff was able to resume his normal work hours
and earn his former wages," compelled the conclusion that White is
no longer disabled. This argument was, however, expressly rejectedin Saums v. Raleigh Cmty. Hosp.
, 346 N.C. 760, 764, 487 S.E.2d 746,
where our Supreme Court held that "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." See also Peoples v. Cone Mills Corp.
N.C. 426, 438, 342 S.E.2d 798, 806 (1986) ("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 Supreme Court has clarified that any
claim "that there is no disability if the employee is receiving the
same wages in the same or other employment is correct only so long
as the employment reflects the employee's ability to earn wages in
the competitive market." Id.
at 440, 342 S.E.2d at 807. Under
, therefore, the Commission's finding that White
had returned to his normal hours and wages did not require denial
of White's claim.
, this Court held that an employee may meet his
burden of proving disability in one of four ways:
(1) the production of medical evidence that he
is physically or mentally, as a consequence of
the work related injury, incapable of work in
any employment; (2) the production of evidence
that he is capable of some work, but that he
has, after a reasonable effort on his part,
been unsuccessful in his effort to obtain
employment; (3) the production of evidence
that he is capable of some work but that it
would be futile because of preexisting
conditions, i.e., age, inexperience, lack of
education, to seek other employment; or (4)
the production of evidence that he has
obtained other employment at a wage less than
that earned prior to the injury.
108 N.C. App. at 765, 425 S.E.2d at 457
omitted). In finding that White was disabled, the Commission
concluded that White had established disability under both the
second and fourth tests articulated in Russell
(See footnote 3)
Weyerhaeuser argues, however, that "the undisputed medical
evidence establishes that Plaintiff was and is capable of working
in a full-duty capacity in the same type of employment as he
performed for Weyerhaeuser." Medical evidence may be dispositive
of only the first Russell
test: "the production of medical
evidence that [the worker] is physically or mentally, as a
consequence of the work related injury, incapable of work in any
, 108 N.C. App. at 765, 425 S.E.2d at 457.
The absence of medical evidence does not preclude a finding of
disability under one of the other three tests. Bridwell v. Golden
Corral Steak House
, 149 N.C. App. 338, 342, 561 S.E.2d 298, 302
("While we agree that plaintiff's medical evidence is insufficient
to show disability, we conclude that plaintiff has met his initialburden of production through other evidence."), disc. review
, 355 N.C. 747, 565 S.E.2d 193 (2002).
White was permitted to meet his burden of proving disability
by producing, as he did, "evidence that he is capable of some work,
but that he has, after a reasonable effort on his part, been
unsuccessful in his effort to obtain employment" and "evidence that
he has obtained other employment at a wage less than that earned
prior to the injury." Russell
, 108 N.C. App. at 765, 425 S.E.2d at
457. The Commission found that White satisfied his burden under
45. Plaintiff made reasonable efforts to
find suitable employment after his termination
from defendant's employment but none was
available to him within his physical
restrictions until he returned to employment
at reduced wages on January 8, 2002.
46. Plaintiff's wages since January 8,
2002 are less than he was making at the time
of his injury by accident and plaintiff's
decreased ability to earn is due to his
disability resulting from the admittedly
compensable injury by accident on December 12,
These findings are binding on appeal and are sufficient to support
the Commission's decision. Whitfield
, 158 N.C. App. at 354, 581
S.E.2d at 787 ("Thus, there is competent evidence in the record to
support the Commission's finding that plaintiff had demonstrated a
reduced wage earning capacity under the fourth option. This
finding, based on the competent evidence in the record, was a
proper basis for the Commission to award plaintiff partial
Finally, Weyerhaeuser argues that White failed to meet his
burden of proving causation, the third prong of Hilliard
, 305 N.C.at 595, 290 S.E.2d at 683. The Commission found that "plaintiff's
decreased ability to earn is due to his disability resulting from
the admittedly compensable injury by accident on December 12,
2000." Weyerhaeuser argues primarily that White's loss of wage-
earning capacity was caused by his resignation and not his injury.
We have already addressed this issue, as discussed above. In any
event, the record contains competent evidence of causation,
including White's testimony that he was informed by prospective
employers that they did not have a position for him while he was on
light-duty work restrictions.
Weyerhaeuser's argument that the
Commission should have weighed and viewed the evidence differently
is not an argument that this Court may consider. See Adams v. AVX
, 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998) (appellate
court may not re-weigh the evidence or assess credibility).
In sum, we hold that the findings of fact properly supported
the Commission's decision to analyze this case under Seagraves
that the Commission's findings support the Commission's conclusion
that White was totally disabled from 26 July 2001 through 7 January
2002, at which point White became partially disabled.
Judges HUDSON and THORNBURG concur.
Judge THORNBURG concurred prior to 31 December 2004.
The Supreme Court has expressly approved the Seagraves
analysis. McRae v. Toastmaster, Inc.
, 358 N.C. 488, 495, 597
S.E.2d 695, 700 (2004).
The Commission found that the record reflected that Taylor,
White's supervisor, was present in the courtroom during the hearing
before the Deputy Commissioner, but did not testify.
Weyerhaeuser contends that the Russell
tests only apply to
the second prong of Hilliard
. This contention is contrary to this
Court's opinion in Russell
, 108 N.C. App. at 765, 425 S.E.2d at 457
(holding that the four tests provide the means by which an employee
may show "that he is unable to earn the same wages he had earned
before the injury, either in the same employment [Hilliard
one] or in other employment [Hilliard
prong two]"). Although
Weyerhaeuser cites Grantham v. R. G. Barry Corp.
, 115 N.C. App.
293, 444 S.E.2d 659 (1994), that opinion does not necessarily
support its position and, in any event, Grantham
could not overrule
. See In re Appeal from Civil Penalty
, 324 N.C. 373, 384,
379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals
has decided the same issue, albeit in a different case, a
subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court.").
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