RICHARD LUCAS, Employee,
Plaintiff,
v
.
North Carolina
Industrial Commission
LL BUILDING PRODUCTS, Employer, I.C. File No. 235306
and
CRAWFORD & COMPANY, Servicing Agent,
Defendants.
Brannon Strickland, PLLC, by Anthony M. Brannon, for plaintiff
appellee.
McAngus, Goudelock & Courie, PLLC, by Trula R. Mitchell, for
defendant appellants.
McCULLOUGH, Judge.
Defendants appeal from an opinion and award of the North
Carolina Industrial Commission (“the Commission”) awarding
temporary total disability payment to plaintiff Richard Lucas (“Mr.
Lucas”). We affirm.
Plaintiff, Mr. Lucas, was employed by LL Building Products as
a lead maintenance man on 26 March 2002 when he was injured on the
job. While working with a machine, Mr. Lucas sustained an injury
by accident in which he severely lacerated his right index and long
fingers. After an investigation of the incident. Mr. Lucas wasterminated for failure to follow established safety procedures.
Immediately following the accident, Mr. Lucas was taken to the
hospital where he was referred to a specialist in the field of
orthopedic surgery with a specific concentration on hands, Dr.
Bahner.
Due to the severity of the injury, Dr. Bahner determined that
Mr. Lucas would be out of work for an extended period of time and
needed multiple surgeries, the first of which was performed in
April 2002. Due to problems with the wound, tendons, and nerves in
Mr. Lucas's hand, he underwent several subsequent surgeries and
debridements in an attempt to repair his hand. Even after the
multiple surgeries, Mr. Lucas continued to have extensive pain
resulting in a surgery in November 2002 which was an attempt to
increase motion in his hand and to eliminate pain and stiffness.
Throughout the period when Mr. Lucas was undergoing these
surgeries, he was also participating in occupational therapy for
his hand.
On 24 June 2003, Dr. Bahner performed a functional capacity
evaluation in an attempt to quantify Mr. Lucas's impairments and
disability. Dr. Bahner determined at that time that, due to loss
of motion and sensation, he had the following impairment ratings:
long finger, 64 percent; index finger, 27 percent; ring finger, 25
percent; and small finger, 33 percent impairment. Based on the
evaluation and impairment rating, Dr. Bahner recommended that Mr.
Lucas be careful with sharp objects due to difficulty with
sensation and use a glove or other protective handwear with anywork. At that time, no restrictions were made on grip or lifting.
In June 2003, Mr. Lucas also received an evaluation from his
therapist finding that Mr. Lucas was capable of sustaining medium
level work for an eight-hour day and further that his grip strength
was approximately a quarter compared to his left side. Dr. Bahner
stated that based on the therapist's evaluation, he could conclude
that Mr. Lucas had lost some of his grip strength from the injury.
Karen Davis, a vocational specialist with Crawford and
Company, defendant-carrier, began working with Mr. Lucas after the
accident in an attempt to find alternate employment. Mr. Lucas was
initially advised to enroll in computer training classes in order
to apply for a job with Dell Labs. Mr. Lucas attended computer
training classes and applied for a job at Dell Labs, but was never
offered a position. Mr. Lucas also applied for a job at a nursing
home which was recommended to him but again was not offered a
position. Karen Davis recommended other alternate employment for
Mr. Lucas; however, he determined that they were too far away from
his home to be feasible options for employment.
Initially, Mr. Lucas's claim was accepted as compensable
pursuant to Form 60. Subsequently defendants filed a Form 24
application to suspend or terminate payment of compensation which
was granted by a special deputy commissioner pursuant to evidence
that Mr. Lucas had wage-earning capacity based on surveillance
video which showed Mr. Lucas operating a tow truck. The matter was
appealed to Deputy Commissioner Phillip Holmes who filed an opinion
and award holding that Mr. Lucas had sustained a compensable injurybut that he was no longer entitled to temporary total disability
where he had wage earning capacity. Mr. Lucas then appealed the
opinion and award of the Deputy Commissioner to the Commission.
In support of defendants' application to terminate Mr. Lucas's
compensation, they presented evidence that Mr. Lucas was capable of
gainful employment in the form of driving a tow truck and further
that there were numerous jobs at LL Building Products that would be
available to Mr. Lucas but for his termination for violation of
safety regulations. There was further evidence at trial of
available opportunities for alternate employment that were not
pursued by Mr. Lucas.
Mr. Lucas admitted that he attempted to drive a tow truck in
order to determine whether it was an occupation which he had the
ability to hold after he sustained his injury. He further explained
that after several failed attempts to secure a vehicle onto the tow
truck he realized that he was unable to pursue this as an
occupation. It was also adduced at trial that none of the positions
testified to as appropriate for Mr. Lucas within LL Building
Products had ever been offered to him nor were any available at the
time of the hearing. The Commission entered an opinion and award
finding that Mr. Lucas was entitled to ongoing benefits and that
the application to terminate compensation was improvidently
allowed.
Defendants now appeal. Defendants contend on appeal that there is no competent
evidence in the record to support a finding of disability and award
of indemnity compensation. We disagree.
In reviewing a decision of the Commission, our review is
limited to two issues: (1) whether any competent evidence in the
record supports the Commission's findings of fact, and (2) whether
such findings of fact support the Commission's conclusions of law.
Moore v. Davis Auto Service, 118 N.C. App. 624, 627, 456 S.E.2d
847, 850 (1995).
An employee injured in the course of his employment is
disabled under the Act if the injury results in an
“incapacity . . . 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) (2005). “The 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 Product Distribution, 108 N.C.
App. 762, 765, 425 S.E.2d 454, 457 (1993). An employee may meet
this burden 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 hasobtained other employment at a wage less than
that earned prior to the injury.
Id. (citations omitted).
Defendants argue that Mr. Lucas did not meet this burden. The
record clearly establishes that Mr. Lucas is capable of doing some
work, is not currently employed, and that Mr. Lucas does not have
a pre-existing condition. The main argument on appeal appears to be
the contention by defendants that there is not competent evidence
in the record that Mr. Lucas made reasonable efforts to obtain
employment. In its opinion and award, the Commission made the
following findings of fact:
7. While continuing his hand treatment,
in December of 2002 and January of 2003 the
plaintiff attempted on his own to learn how to
operate a tow truck. Plaintiff was
contemplating buying a towing business to own
and run himself if he could perform the
physical tasks required in that trade. The
owners of AOK Towing were trying to sell their
business, and attempted to teach plaintiff to
execute the tasks required in the towing
business. The plaintiff rode in the truck in
order to learn the physical as well as the
business aspects of AOK Towing. To that end
the plaintiff often went inside to see clients
and handle the paperwork involved with tows.
The plaintiff never received any wages
whatsoever from AOK Towing.
8. The plaintiff lacked the hand strength
to secure cars to a tow truck. A car plaintiff
attempted to secure became loose and fell off
the truck as he was towing it. Plaintiff
abandoned the idea of owning and running a
towing business due to his inability to
perform the necessary physical tasks with his
right hand. The defendants submitted no
evidence that plaintiff earned any wages from
AOK Towing.
Defendants attempted to present evidence that Mr. Lucas was capable
of work, through testimony and a video presentation, showing Mr.
Lucas operating a tow truck. Defendants asserted that where he was
capable of work, he was therefore not entitled to disability
benefits. However, the Commission declined to accept this evidence
as credible evidence and this Court will not re-weigh that
evidence. Anderson v. Motor Co., 233 N.C. 372, 376, 64 S.E.2d 265,
268 (1951) (In weighing the evidence, the Commission is the sole
judge of the credibility of witnesses and the weight to be given
their testimony, and may reject entirely the testimony of a witness
if warranted by disbelief of the witness.). The Commission instead
accepted the testimony of Mr. Lucas that the video evidence of him
operating a tow truck was one of the many instances in which he
unsuccessfully attempted to find alternate employment after his
injury.
Defendants attempted to offer further evidence showing that
Mr. Lucas failed to make reasonable efforts to obtain employment,
and moreover that there would be positions available for Mr. Lucas
at LL Building Products, considering his restrictions, but for his
termination. However, the Commission also found this evidence to
not be credible and made the following findings of fact:
10. Defendant started vocational services
on 30 August 2003, but these services proved
not to be fruitful. The defendants closed the
vocational file on plaintiff on 16 January
2004. The vocational professional wrote in the
13 January 2004 report that the plaintiff
completed a keyboarding class, had a strong
work ethic, was motivated to return to work,and followed up on all job leads. Plaintiff
was unable to find suitable employment.
11. The defendants named several jobs
that plaintiff could possibly perform for
defendant-employer. However, Mr. Redwine, the
employer's safety coordinator, testified on
cross-examination that none of these jobs were
ever offered to plaintiff and that none were
available at the time of the hearing before
the Deputy Commissioner.
These findings of fact are merely another indication that there was
conflicting evidence which the Commission weighed and subsequently
determined the evidence of Mr. Lucas to be more credible and
competent.
Mr. Lucas testified that he sought work with a towing company
on his own volition and that he worked with a vocational specialist
in attempting to obtain employment by enrolling in a computer class
and applying for numerous jobs. Mr. Lucas testified that he was
physically unable to complete the tasks associated with a towing
job and further that he completed several job applications and was
refused employment in each instance. The report of the vocational
specialist was further admitted into evidence showing that Mr.
Lucas was motivated to work, had followed up on all job leads, but
was unable to find suitable work. Because the Commission is the
sole judge of the credibility of the witnesses and has rejected as
not credible defendants' evidence that Mr. Lucas failed to make a
reasonable effort to obtain other employment, Mr. Lucas met his
burden of showing the existence of a disability.
Accordingly, the decision of the Commission is Affirmed.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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