Appeal by defendants from opinion and award entered 28
September 2004 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 11 October 2005.
The Kilbride Law Firm, PLLC, by Terry M. Kilbride and Nina G.
Kilbride, for plaintiff-appellee.
Cranfill, Sumner & Hartzog, L.L.P., by Meredith T. Black, for
Gilbert Silva (plaintiff) was employed by Lowe's Home
Improvement (Lowe's) in the plumbing department at a Lowe's store
in Henderson. Plaintiff was fifty-eight years old at the time of
the hearing of his claim. Prior to his employment at Lowe's,
plaintiff had worked as an engineer for Lockheed Martin and had
also owned, operated, and managed his own business. Plaintiff's
primary function at Lowe's was to write special orders for
customers, attend to customers, stock shelves, and clean.
Plaintiff was using a cherry picker to stock shelves on 26 May 2001
when he lost his footing and hit the edge of the shelving with his
upper chest. Plaintiff was seen by a physician, who instructed
plaintiff not to lift items exceeding twenty pounds. Plaintiff
returned to work at Lowe's. Plaintiff suffered a second injury on
23 November 2001 while guiding a shower door onto a cart.
Plaintiff again saw a physician and was instructed not to lift
items over twenty-five pounds continuously, or over forty pounds onoccasion. Plaintiff returned to work at Lowe's following this
At a plumbing department staff meeting in April 2002,
plaintiff's immediate supervisor, Clint Francis (Mr. Francis),
reminded employees that they were responsible for "zoning" their
respective areas within the plumbing department. "Zoning" involved
walking down the aisles and straightening items. Mr. Francis
reminded plaintiff about plaintiff's zoning duties. Mr. Francis
also asked the assistant store manager, Kyndall McNair (Ms.
McNair), to remind plaintiff. Ms. McNair approached plaintiff on
9 April 2002 to discuss his zoning duties. Plaintiff testified
that some of Ms. McNair's concerns involved duties that plaintiff
was incapable of performing because of plaintiff's lifting
restrictions. Ms. McNair denied asking plaintiff to perform any
duties beyond plaintiff's lifting restrictions, and testified she
thought the meeting had gone well.
Plaintiff testified that on 15 April 2002, he arrived at work
earlier than usual to "get some closure" with Ms. McNair regarding
their previous conversation about plaintiff's zoning duties. Ms.
McNair asked the store's training and personnel coordinator, Audra
Benfield (Ms. Benfield), to join the meeting. Ms. McNair testified
that during the meeting, a "heated" exchange took place between
plaintiff and Ms. McNair. Plaintiff became upset, raised his
voice, and told Ms. McNair to "shut up." Following this incident,
Lowe's district manager, Jeff Sain, terminated plaintiff's
employment by telephone. Thereafter, plaintiff requested a hearingbefore the Industrial Commission (the Commission) alleging
entitlement to continuing disability compensation.
After a hearing, a deputy commissioner entered an opinion and
award on 20 August 2003, concluding that: (1) plaintiff was
terminated for insubordination, (2) any other employee of Lowe's
would have been terminated for the same action, and (3) plaintiff
constructively refused to perform the work provided. The deputy
commissioner denied plaintiff's claim for temporary total
disability compensation. Plaintiff appealed to the full
Commission, which reversed the deputy commissioner. The Commission
entered an opinion and award on 28 September 2004 finding that
Lowe's and its insurance carrier, Specialty Risk Services,
(collectively defendants), failed to show that plaintiff was
terminated for misconduct for which a non-disabled employee would
have been terminated. The Commission awarded plaintiff ongoing
total disability compensation from 16 April 2002 until plaintiff
returned to work, as well as medical expenses incurred as a result
of the 26 May 2001 injury. Defendants appeal.
Appellate review of an award from the Commission is limited to
two inquiries: (1) whether the findings of fact are supported by
any competent evidence in the record, and (2) whether the
conclusions of law are justified by the findings of fact. Counts
v. Black & Decker Corp.
, 121 N.C. App. 387, 389, 465 S.E.2d 343,
345 (internal citation omitted), disc. review denied
, 343 N.C. 305,
471 S.E.2d 68-69 (1996). If supported by competent evidence, theCommission's findings are conclusive even if the evidence might
also support a contrary finding. Jones v. Candler Mobile Village
118 N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995).
Defendants assign error to seven findings of fact, arguing the
findings are not supported by competent evidence. Defendants also
assign error to three conclusions of law, arguing the conclusions
are not supported by competent findings of fact. Defendants
further assign error to three paragraphs of the award, arguing that
those paragraphs are not supported by the findings and conclusions.
 Defendants argue that finding of fact number five is not
supported by competent evidence. Finding of fact number five
Regarding plaintiff's restrictions and the
requirements of his "light duty job,"
defendants assert that his restrictions were
accommodated. However, there is no credible
evidence of record . . . relating to any
specific modifications or purported
accommodations made by defendants. Moreover,
plaintiff, whose testimony is accepted as
credible, testified that his supervisors and
co-workers often complained and expressed
frustration regarding his lifting restrictions
following his return to work.
Defendants argue there is no evidence in the record to support a
finding that plaintiff's lifting restrictions were not
accommodated. However, we find no evidence of specific
accommodations or modifications made to suit plaintiff's lifting
restrictions. Moreover, there is conflicting evidence over whether
plaintiff was asked to do work beyond his restrictions. Plaintiff
testified that on occasion he refused to do assigned work that wasbeyond his restrictions, and that such refusals appeared to cause
"grief" for Ms. McNair and the store manager, John Blankenship (Mr.
Blankenship). Plaintiff also testified that "at times there was
agitation" over his restrictions and that Ms. McNair asked
plaintiff to perform tasks beyond his restrictions. Ms. McNair
testified that she never asked plaintiff to perform any activities
beyond his restrictions, and that her concern about plaintiff's
work was that plaintiff was not zoning items within his
restrictions, such as faucets, towel bars, and filters.
It is well settled that the Commission is the "sole judge of
the weight and credibility of the evidence." Deese v. Champion
., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). On
appeal, this Court may not re-weigh evidence or assess credibility
of witnesses. Adams v. AVX Corp.
, 349 N.C. 676, 681, 509 S.E.2d
411, 414 (1998). In the present case, the Commission afforded
greater weight to plaintiff's testimony than to the testimony of
defendants' witnesses. Although the testimony is conflicting,
there is competent evidence to support the Commission's finding.
 Defendants next assign error to finding of fact number
On 15 April 2002, plaintiff reported to
work . . . [and] approach[ed] Ms. Kyndall
McNair, defendant-employer's assistant
manager, to discuss his concerns regarding his
restrictions not being complied with and the
problems this was creating. Ms. McNair then
asked Ms. Audra Benfield, defendant-employer's
personnel training coordinator, to join the
discussion. During the meeting, plaintiff
testified that Ms. McNair was rude and that
she thrust her hand into his face. Ms. McNair
testified that it was plaintiff who was rudeand that he also displayed threatening
behavior. Following this meeting, plaintiff
was terminated for the stated reason of being
Defendants argue there is no evidence that plaintiff intended to
discuss his restrictions with Ms. McNair or that he in fact did so
during the meeting. Again, while the evidence is somewhat
conflicting, there is competent evidence in the record to support
this finding of fact. Plaintiff testified that on 9 April 2002, he
and Ms. McNair had a meeting to discuss zoning. According to
plaintiff, Ms. McNair was "upset" because he was not zoning
properly. Plaintiff explained to Ms. McNair that he was unable to
do certain zoning tasks because of his lifting restrictions.
Plaintiff further testified he sought the 15 April 2002 meeting
with Ms. McNair to "get some closure to some statements that were
made . . . by [Ms.] McNair the week earlier [at the 9 April 2002
meeting]." This testimony supports the Commission's finding that
plaintiff sought to meet with Ms. McNair on 15 April 2002 to
discuss his restrictions.
Defendants also argue the Commission erred in not
acknowledging, in finding number six, the undisputed evidence that
plaintiff told Ms. McNair to "shut up." Defendants contend that
plaintiff's telling Ms. McNair to "shut up" was "clearly" the
reason for his termination, i.e., insubordination, and that the
Commission erred in ignoring this evidence. However, defendants
presented no direct evidence of plaintiff's termination. Jeff
Sain, the district manager who fired plaintiff, was not present for
the hearing, nor was any deposition testimony presented. As aresult, the Commission weighed the explanations given for
plaintiff's termination by plaintiff and Ms. McNair. The
Commission found only that plaintiff was terminated for the "stated
reason" of being insubordinate. We find no error.
 Defendants next assign error to finding of fact number
Pursuant to the credible evidence of record,
it is defendant-employer's policy to have a
witness present when disciplinary action is
taking place. Therefore, the reasonable
inference from Ms. McNair securing a witness
prior to the meeting, which was requested by
plaintiff, is that she planned to discipline
plaintiff even before the meeting commenced.
Based upon this and the entire record of
credible evidence, the Full Commission gives
great weight to plaintiff's testimony
regarding the circumstances of his termination
as opposed to that of Ms. McNair, which is
given less weight.
In support of this finding, Ms. McNair testified that Lowe's
does have a policy of having a witness present if an employee is to
be reprimanded. However, Ms. McNair also testified that she asked
Ms. Benfield to be present because plaintiff was visibly agitated.
Ms. Benfield confirmed that plaintiff had an aggressive attitude,
and that she was not directed to attend the meeting for the purpose
of witnessing plaintiff's termination.
Evidence tending to support a plaintiff's claim is to be
viewed in the light most favorable to the plaintiff, who is
"entitled to the benefit of every reasonable inference to be drawn
from the evidence." Adams
, 349 N.C. at 681, 509 S.E.2d at 414.
Although it is reasonable to infer from the evidence that Ms.
Benfield was present only because of a concern about plaintiff'sagitation, it is also reasonable to infer that Ms. Benfield was
present to witness disciplinary action. Since plaintiff is
entitled to the benefit of every reasonable inference, we find no
error in the Commission's finding that Ms. McNair planned to
 Defendants next assign error to finding of fact number
Based upon the credible evidence of record,
defendants have failed to prove that
plaintiff's termination was for misconduct or
fault for which a non-disabled employee would
also have been terminated. In fact, the
credible evidence of record supports a finding
that plaintiff's termination was directly
related to his assigned light duty work
restrictions and defendant-employer's
inability to reasonably accommodate those
restrictions. Accordingly, plaintiff did not
constructively refuse suitable work.
The Commission's finding, that plaintiff's termination was
directly related to plaintiff's assigned light-duty work
restrictions, is supported by plaintiff's testimony that he sought
to meet with Ms. McNair on 15 August 2002 to discuss issues related
to zoning and plaintiff's lifting restrictions. Defendants again
argue that the Commission's finding is erroneously void of any
mention of the undisputed evidence that plaintiff told Ms. McNair
to "shut up" during the meeting. Defendants point out that
plaintiff admitted to doing so in a letter to Bob Tillman, C.E.O.
of Lowe's, and testimony by Ms. McNair and Ms. Benfield confirmed
plaintiff's behavior at the meeting. Ms. Benfield further
testified that, under Lowe's disciplinary policy, telling a
supervisor to "shut up" would constitute insubordinate conduct, aClass A offense that could result in an employee's immediate
termination. Mr. Blankenship further testified that he called Jeff
Sain, who ultimately terminated plaintiff, to report on the meeting
and "to discuss what needed to be done to make sure we were
following [Lowe's] policy and procedure." From this evidence,
defendants argue, and we agree, it is reasonable to infer that
plaintiff's termination was for insubordination, misconduct for
which a non-disabled employee would also have been terminated, and
that plaintiff's termination was unrelated to plaintiff's lifting
restrictions. However, the Commission found the testimony by
defendants' witnesses to be less credible than plaintiff's
testimony. Accordingly, and giving plaintiff the benefit of every
reasonable inference, the Commission found that plaintiff was not
terminated for insubordination, but rather because of plaintiff's
lifting restrictions, and found that the termination was related to
plaintiff's injury. Moreover, as previously discussed, defendants
presented no testimony or evidence from Jeff Sain, who had
communicated to plaintiff the reason for plaintiff's termination.
The final sentence of finding number eight, that "plaintiff
did not constructively refuse suitable work[,]" is actually a
conclusion of law, and we will address it as such in section II of
this opinion. See McRae v. Toastmaster, Inc.
, 358 N.C. 488, 499,
n.3, 597 S.E.2d 695, 703, n.3 (2004) (noting the determination that
a plaintiff has constructively refused suitable employment is a
conclusion of law and that the distinction between a finding of
fact and a conclusion of law is "significant, as an appellatecourt's standard of review of the Commission's findings of fact is
markedly different from its standard for reviewing the Commission's
conclusions of law.").
 We next review the Commission's finding of fact number
nine, that "[a]s the result of his 26 May 2001 injury by accident,
plaintiff has been unable to earn any wages in any employment[.]"
We hold that this finding is insufficient. While the Commission
"is not required to make specific findings of fact on every issue
raised by the evidence, it is required to make findings on crucial
facts upon which the right to compensation depends." Watts v. Borg
Warner Auto., Inc
., 171 N.C. App. 1, 5 613 S.E.2d 715, 719, aff'd
360 N.C. 169, 622 S.E.2d 492 (2005). Here, the Commission "failed
to make specific findings of fact as to the crucial questions
necessary to support a conclusion as to whether plaintiff had
suffered any disability as defined by G.S. 97-2(9)." Hilliard v.
Apex Cabinet Co.
, 305 N.C. 593, 596, 290 S.E.2d 682, 684 (1982).
An employee seeking compensation under the Workers'
Compensation Act (the Act) bears the burden of proving the
existence of a disability and its extent. Clark v. Wal-Mart
N.C. 41, 43, 619 S.E.2d 491, 493 (2005). The Act defines
disability 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). Disability,
therefore, is "the impairment of the injured employee's earning
capacity rather than physical disablement." Russell v. Lowes
, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457(1993). In order to award compensation to a claimant, the
Commission must find that the claimant has shown disability.
, 305 N.C. at 595, 290 S.E.2d at 683. An employee may meet
this burden of proof in four ways: (1) medical evidence that, as a
consequence of the work-related injury, the employee is incapable
of work in any employment; (2) evidence that the employee is
capable of some work, but has been unsuccessful, after reasonable
efforts, in obtaining employment; (3) evidence that the employee is
capable of some work, but that it would be futile to seek
employment because of preexisting conditions, such as age or lack
of education; or (4) evidence that the employee has obtained
employment at a wage less than that earned prior to the injury.
, 108 N.C. App. at 765, 425 S.E.2d at 457.
In the present case, the Commission made only one finding
about the existence and extent of plaintiff's disability: "As the
result of his 26 May 2001 injury by accident, plaintiff has been
unable to earn any wages in any employment for the period of 16
April 2002 through the present and continuing." Nominally, this
finding satisfies the Hilliard
test and the Act's definition of
disability. However, the finding is insufficient to allow this
Court to review the legal basis for this ultimate finding of fact.
There are no findings of fact as to medical evidence, evidence of
reasonable efforts to obtain employment, or evidence of the
futility of plaintiff's seeking employment. As a result, we are
unable to determine which of the four Russell
prongs the Commission
has relied on in coming to the ultimate factual finding thatplaintiff has carried his burden of proving disability. Because
the Commission's findings of fact are insufficient to enable this
Court to determine plaintiff's right to compensation, this matter
must be remanded for proper findings on this issue. See Lawton v.
County of Durham
85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987)
(holding that where the findings are insufficient to enable the
reviewing court to determine the rights of the parties, the case
must be remanded to the Commission for proper findings of fact).
We note defendants stipulated to the compensability of
plaintiff's injury. However, defendants' admission of
compensability did not relieve plaintiff of his burden of proving
the existence and extent of his alleged disability. See Clark
N.C. at 44, 619 S.E.2d at 493 ("[T]he law in North Carolina is well
settled that an employer's admission of the 'compensability' of a
workers' compensation claim does not give rise to a presumption of
'disability' in favor of the employee."). Nor did defendants'
stipulation relieve the Commission of its duty "'to make specific
findings regarding the existence and extent of any disability
suffered by plaintiff.'" Id
. (quoting Johnson v. Southern Tire
Sales & Serv.
, 358 N.C. 701, 707, 599 S.E.2d 508, 512-13 (2004)).
Accordingly, we remand to the Commission for adequate findings on
the existence and extent of plaintiff's disability.
 We now address the Commission's conclusion of law,
embedded in finding of fact number eight, that "plaintiff did not
constructively refuse suitable work." The conclusion is supportedby the Commission's factual findings that plaintiff was fired not
for misconduct, but rather for reasons directly related to
plaintiff's lifting restrictions. Accordingly, we find no error in
this conclusion. Moreover, the conclusion results from the correct
application of the Seagraves
test for constructive refusal. See
Seagraves v. Austin Co. of Greensboro
, 123 N.C. App. 228, 472
S.E.2d 397 (1996).
N.C. Gen. Stat. § 97-32 (2003) provides that an injured
employee is not entitled to any compensation if the employee
refuses employment suitable to the employee's capacity, unless the
Industrial Commission finds that such refusal was justified. A
refusal of employment may be actual or constructive. Seagraves
123 N.C. App. at 233-34, 472 S.E.2d at 401. Where an injured
employee is terminated for misconduct, such termination may
constitute constructive refusal. Id.
at 230, 472 S.E.2d at 399.
To establish that an injured employee has constructively refused
employment, the employer must show "that the employee was
terminated for misconduct or fault, unrelated to the compensable
injury, for which a nondisabled employee would ordinarily have been
at 234, 472 S.E.2d at 401.
Defendants also assign error to the Commission's conclusion of
law number two, that "[b]ased upon the credible evidence of record,
defendants have failed to prove that plaintiff's termination was
for misconduct or fault for which a non-disabled employee would
also have been terminated." This conclusion is based on the
Commission's finding number eight, that plaintiff's termination was
directly related to his assigned light-duty work restrictions. TheCommission did not find defendants' explanation, that plaintiff was
terminated for insubordination, to be credible. Because the
Commission is the sole judge of the credibility of witnesses, we
find no error.
Finally, defendants assign error to those paragraphs of the
Commission's conclusions and award that state that plaintiff is
entitled to payment of ongoing disability compensation and medical
expenses. As discussed above, the Commission's order and award
contain insufficient findings as to whether plaintiff, in fact,
suffered any disability. Accordingly, we affirm that part of the
Commission's order that provides, under Seagraves
, that plaintiff
is not barred from compensation because of constructive refusal of
suitable employment. Seagraves
, 123 N.C. App. at 234, 472 S.E.2d
at 401. We remand for further findings on the threshold issue of
whether plaintiff has proved the existence of a disability that
would entitle him to compensation under the Act.
Defendants' assignments of error numbers one and two, not
argued in defendants' brief on appeal, are deemed abandoned
pursuant to N.C.R. App. P. 28(b)(6).
Affirmed in part; remanded.
Judges WYNN and GEER concur.
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