NO. COA04_217
NORTH CAROLINA COURT OF APPEALS
Filed: 5 April 2005
HOAT PIPER,
Employee,
Plaintiff,
v
.
North Carolina
Industrial Commission
I.C. No. 081100
AMP, INCORPORATED,
Employer,
THE TRAVELERS,
Carrier,
Defendants.
Appeal by plaintiff from Opinion and Award filed 6 August 2003
by the North Carolina Industrial Commission. Heard in the Court of
Appeals 20 October 2004.
Law Offices of George W. Lennon, by George W. Lennon and W.
Bain Jones, Jr., for plaintiff-appellant.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Erin D.
Eveson and Barry C. Jennings, for defendants-appellees.
GEER, Judge.
Plaintiff Hoat Piper appeals from the Industrial Commission's
opinion and award granting her medical compensation, but denying
her partial disability benefits after she voluntarily resigned from
her position at defendant to take a lesser-paying job. Because we
have determined that competent evidence supports the Commission's
finding that plaintiff's decreased wages were not due to her
compensable injury, we affirm the Commission's conclusion thatplaintiff is not entitled to partial disability compensation based
on wage loss.
During the years 1978_1987 and 1994_1999, plaintiff worked for
defendant AMP, Inc. as a die repair machine mechanic. On 23
December 1998, she slipped on ice in her employer's parking lot and
injured her lower back and tailbone. Plaintiff did not miss any
work since she was on vacation from 23 December 1998 through 4
January 1999 and, thereafter, returned to work in a light-duty
capacity.
After an initial visit with her family physician, plaintiff
was referred to Dr. Jeffrey Beane at Greensboro Orthopaedic Clinic
for treatment at defendants' expense. On 18 May 1999, after
treating plaintiff from 7 January 1999 throughout the spring, Dr.
Beane concluded: "Continue light duties with no lifting over 25
pounds. No repetitive bending for the next two weeks. On 6/1/99,
she can return to her work on full duties as tolerated full time.
I anticipate maximum medical improvement at that point in time with
no permanent partial impairment." Plaintiff did not visit Dr.
Beane again while she was working for AMP.
Defendants offered evidence that plaintiff's supervisors gave
her the opportunity to move to another similar job in the same
department with the same pay that would better accommodate her work
restrictions, but that plaintiff "expressed a desire to stay on her
same job on the extruders . . . but with some assistance." H er
supervisors "arranged for someone to be back there with her anytime she needed to do all of her lifting." Plaintiff's immediate
supervisor Kerry Smith testified that plaintiff told him that
"[s]he felt like it was going great with the help that they were
providing and everything was working out real good." Plaintiff
testified, however, that her job duties aggravated her back
condition and increased her pain.
Plaintiff tendered her resignation to AMP in August 1999 and
moved from Greensboro to Raleigh where she began working for a new
employer, Cree Research, Inc., at a decrease in pay. AMP had paid
plaintiff $16.00 per hour, while her new job at Cree paid $12.00
per hour. The evidence before the Industrial Commission conflicted
as to plaintiff's reason for changing jobs. Plaintiff claimed that
it was because of her difficulty in performing her job, while
defendants offered evidence that it was because of a desire to take
another job closer to her family.
In November 1999, three months after leaving her job at AMP,
plaintiff returned to Dr. Beane's office for another visit.
According to Dr. Beane, plaintiff
indicated that _ in October _ that she was
having continued symptoms and requested I see
her back for a follow-up visit, which I did on
the 9th of November. She indicated at that
point in time that she had a recurrence of her
back pain in the new job _ a new job that she
was now working in Raleigh. Apparently, it
required a fair amount of sitting which she
was having a problem with longer than the half
hour at a time. She indicated that after I
had seen her in May, she nearly had a complete
resolution of her symptoms. It was not until
she started her new job with the increased
sitting demands that her pain increased. As a result of this visit, Dr. Beane prescribed pain medication and
a seat cushion, and stated, "[s]he is to limit her sitting whenever
possible. I think she can return to work on full duties as
tolerated and see me as needed. No changes in her impairment at
this point in time."
On 22 January 2001, plaintiff filed a Form 33, requesting a
hearing on her claim for partial disability benefits and payment
for medical treatment. Following a hearing on 28 August 2001,
Deputy Commissioner George T. Glenn, II filed an opinion and award
on 3 June 2002, concluding that plaintiff had been partially
disabled since 23 December 1998. Defendant appealed to the Full
Commission, and on 6 August 2003, the Full Commission entered an
opinion and award by Commissioner Christopher Scott with a dissent
by Commissioner Bernadine S. Ballance, awarding plaintiff medical
compensation, but concluding that plaintiff was not entitled to
disability compensation.
In reviewing a decision by the Full 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). An
appellate court's duty in this regard is to determine whether the
record contains any evidence tending to support the findings.
Lanning v. Fieldcrest-Cannon, Inc., 352 N.C. 98, 106, 530 S.E.2d
54, 60 (2000). With respect to issues of fact, "the IndustrialCommission is the sole judge of the credibility of the witnesses
and the weight to be given to their testimony. The Commission may
accept or reject the testimony of a witness solely on the basis of
whether it believes the witness or not."
Hilliard v. Apex Cabinet
Co., 305 N.C. 593, 594, 290 S.E.2d 682, 683-84 (1982).
There is no dispute that plaintiff suffered a compensable
injury. The issue before the Commission was whether plaintiff was
disabled as a result of that compensable injury. Disability is
defined under the Workers' Compensation Act as "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. Gen.
Stat. § 97-2(9) (2003). 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, 305 N.C. at 594-
95, 290 S.E.2d at 683
.
In order to support a conclusion of compensable disability,
the Commission must find:
(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.
Id. at 595, 290 S.E.2d at 683. Under this test, the employee
"bears the burden of showing that she can no longer earn her pre-
injury wages in the same or any other employment,
and that the
diminished earning capacity is a result of the compensable injury."
Gilberto v. Wake Forest Univ., 152 N.C. App. 112, 116, 566 S.E.2d
788, 792 (2002) (emphasis added).
An employee may meet her 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.
Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 765, 425
S.E.2d 454, 457 (1993) (internal citations omitted). The
Russell
test, however, provides only a 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 prong one] or in
other employment [
Hilliard prong two]."
Id. Russell evidence does
not, however, establish the third prong of
Hilliard: that the
employee's incapacity to earn wages was caused by the employee's
compensable injury.
In this case, plaintiff relied upon the fourth method of
Russell to prove her partial capacity to earn wages. She offered
evidence that she was working at Cree Research for a lower wage
than she was earning at AMP. Under
Hilliard, however, the
Commission was required to determine whether the wage loss was dueto plaintiff's compensable injury or whether it was due to some
other cause. The Commission made the following findings pertinent
to this question:
7. The plaintiff returned to her full
duty position with defendant-employer as of 1
June 1999 at her preinjury wage and worked at
this position through the months of June and
July, 1999 without complaint and without
seeking medical treatment.
8. The plaintiff tendered her
resignation from defendant-employer on 9
August 1999. In her exit questionnaire, the
plaintiff indicated that she has resigned
voluntarily to take other employment. The
plaintiff indicated verbally to one of her
supervisors that she was taking employment in
Raleigh to be closer to her family.
9. There is insufficient evidence of
record from which to prove that as a result of
the compensable injury by accident that the
plaintiff retained any disability beyond 1
June 1999.
10. The plaintiff resigned her
employment with defendant-employer on 9 August
1999 for reasons unrelated to the injury by
accident.
While the opinion and award is quite circumscribed, we believe
that these findings indicate that the Commission was denying
plaintiff's claim based on her failure to prove that her decreased
capacity to earn wages was due to her injury as opposed to her
desire to move nearer to her family. Our review of the evidence
reveals that these findings of fact are supported by competent
evidence.
Although plaintiff maintains that she was forced to change
jobs because the functions she was required to perform at AMP were
causing her too much pain, she stated on her exit questionnairethat she was resigning voluntarily and had another job. In
completing the questionnaire, she did not mention anything about
problems with pain. AMP human resources advisor Deborah Ann Miller
testified that during plaintiff's exit interview, plaintiff stated
simply, consistent with the questionnaire, that she was leaving to
take another job.
In addition, plaintiff's supervisor Kerry Smith
testified that he understood plaintiff was quitting her job in
Greensboro and moving to Raleigh because "she was going back to an
area where she had previously lived and had friends and family
there."
Dr. Beane's testimony further supported the Commission's
findings: "She indicated that after I had seen her in May, she
nearly had a complete resolution of her symptoms. It was not until
she started her new job with the increased sitting demands that her
pain increased."
This evidence is sufficient to support the Commission's
determination that any wage loss was the result of plaintiff's
desire to move and not her work-related injury. In turn, that
determination supports the Commission's conclusion that plaintiff
is not entitled to disability compensation based on wage loss.
(See footnote 1)
See Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 234,
472 S.E.2d 397, 401 (1996) (holding that, in the context of an
involuntary termination, "the test is whether the employee's loss
of, or diminution in, wages is attributable to the wrongful actresulting 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").
Accordingly, under the applicable standard of review, we affirm.
Affirmed.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
Footnote: 1