Appeal by defendants from an Opinion and Award entered 2 March
2006 by the Full Commission. Heard in the Court of Appeals 7 March
2007.
Bollinger & Piemonte, PC, by Bobby L. Bollinger, Jr., for
plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Paul Lawrence
and Taurus Becton, for defendant-appellants.
BRYANT, Judge.
Michelin North America, Inc. and ACE USA Insurance Company
(defendants) appeal from an Opinion and Award of the North Carolina
Industrial Commission entered 2 March 2006, awarding Rocky Burris
Eudy (plaintiff) workers' compensation benefits under N.C. Gen.
Stat. § 97-30. For the reasons below we affirm the Order and Award
of the Full Commission.
Facts
On the date of the hearing in this matter, plaintiff was
fifty-five years old and had completed the seventh grade. In 1990
plaintiff became employed with defendant-Michelin as a
tire-builder. Plaintiff suffered a compensable occupational
disease while working for defendant-Michelin on 10 June 2000, when
he developed bilateral carpal tunnel syndrome. Defendants admitted
the claim was compensable and paid weekly benefits based upon an
average weekly wage of $712.00, which yielded a compensation rate
of $474.76 per week.
Plaintiff was subsequently diagnosed with bilateral severe
carpal tunnel syndrome on 8 September 2000. On 26 September 2000,plaintiff underwent carpal tunnel release surgery to relieve the
condition in his right hand. Plaintiff underwent the same surgical
procedure on his left hand on 24 October 2000. Following the
surgeries, plaintiff was assigned a five percent permanent partial
impairment rating to his right hand and a five percent permanent
partial impairment rating to his left hand on 18 January 2001.
Plaintiff was released for regular work duty and given permanent
restrictions of no forceful gripping or pinching activities, or use
of vibratory or impact tools, and weight restrictions for each hand
of twenty to twenty-five pounds. Plaintiff was assigned to a new
position as a tire painter, which required plaintiff to lift tires
weighing up to fifty pounds.
Both parties agreed that defendants would pay plaintiff twenty
weeks of workers' compensation benefits for the five percent
permanent partial disability to each hand, pursuant to a Form 21
agreement. The Form 21 agreement was approved by the Commission on
13 July 2001.
On 21 May 2001, plaintiff returned to his treating physician,
Dr. Warren Burrows, who stated plaintiff appeared to have mild
recurrence of his symptoms and placed him on light duty. Plaintiff
was assigned restrictions not to lift/carry, push/pull more than
ten to fifteen pounds. On 27 August 2001, Dr. Burrows recommended
plaintiff be placed at a twenty pound lifting restriction and
plaintiff returned to light duty work. On 17 September 2001,
plaintiff followed up with Dr. Burrows who noted plaintiff's
symptoms and numbness in his hands had improved. On 27 September 2001, plaintiff underwent a Functional
Capacity Evaluation (FCE) that demonstrated he was able to lift
occasionally twenty-one to fifty pounds, frequently eleven to
twenty pounds, and constantly one to ten pounds. The FCE also
indicated plaintiff was able to carry occasionally fifty-one to one
hundred pounds, frequently twenty-six to fifty pounds, and
constantly eleven to twenty pounds. On 1 October 2001, Dr. Burrows
gave plaintiff permanent restrictions in compliance with the FCE,
and noted plaintiff “has already received an impairment rating and
needs no additional rating.” Plaintiff has not complained about
his hand condition or sought any additional medical treatment since
1 October 2001.
On 9 November 2001, plaintiff was laid off by defendant, and
took a voluntary resignation package which was unrelated to any
compensation plaintiff was due under the North Carolina Workers'
Compensation Act. On 14 March 2002, defendants assigned plaintiff
vocational rehabilitation with Nancy Stewart. Plaintiff
subsequently secured employment with Homanit, USA as forklift
driver on or about 13 May 2002. However, on 13 March 2003, Homanit
terminated plaintiff's employment as a result of excessive
unexcused absences and tardiness. Plaintiff then began working for
the City of Albemarle on 8 September 2003, as a water tester.
Plaintiff was subsequently laid off by the City of Albemarle but
may be returning to work if he passes an Algebra test. Neither of
plaintiff's jobs since he was laid off by defendant-Michelin havecaused pain in his hands, and both paid less than plaintiff earned
while working for defendant-Michelin.
Procedural History
This matter was heard before Deputy Commissioner J. Brad
Donovan in Concord, North Carolina on 16 November 2004. On 6 May
2005, Deputy Commissioner Donovan filed an Opinion and Award in
which he concluded that, following plaintiff's return to work with
defendant-Michelin in early 2001, he suffered a change in condition
which increased his symptoms and which impacted his earning
capacity and degree of disability. Defendants appealed to the Full
Industrial Commission which heard this matter on 6 December 2005.
On 2 March 2006, the Full Commission issued an Opinion and
Award in which it upheld Deputy Commissioner Donovan's conclusion
that plaintiff suffered a change in condition which increased his
symptoms and impacted his earning capacity and degree of
disability. The Full Commission also concluded that upon receipt
of plaintiff's new restrictions, defendant-Michelin could no longer
provide him with work, which impacted his earning capacity.
Defendants appeal.
_________________________
Defendants present the issue of whether the Full Commission
erred in determining plaintiff suffered a compensable change of
condition pursuant to N.C. Gen. Stat. § 97-47. Defendants
specifically argue plaintiff has failed to show a change in
condition affecting his physical capacity to earn wages. We
disagree.
Standard of Review
Review by this Court of a decision by the North Carolina
Industrial Commission is limited to the determination of “whether
any competent evidence supports the Commission's findings of fact
and whether [those] findings . . . 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). The Commission's findings of fact
are conclusive on appeal even where there is contrary evidence, and
such findings may only be set aside where there is a “complete lack
of competent evidence to support them.”
Johnson v. Herbie's Place,
157 N.C. App. 168, 171, 579 S.E.2d 110, 113 (2003) (citation and
quotations omitted);
see also Adams v. AVX Corp., 349 N.C. 676,
681, 509 S.E.2d 411, 414 (1998). Our review “'goes no further than
to determine whether the record contains any evidence tending to
support the finding.'”
Id. (quoting
Anderson v. Lincoln Constr.
Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). “[E]vidence
tending to support plaintiff's claim is to be viewed in the light
most favorable to plaintiff, and plaintiff is entitled to the
benefit of every reasonable inference to be drawn from the
evidence.”
Id. (citation omitted);
see also Hollman v. City of
Raleigh, 273 N.C. 240, 252, 159 S.E.2d 874, 882 (1968) (“[O]ur
Workmen's Compensation Act should be liberally construed to
effectuate its purpose to provide compensation for injured
employees . . ., and its benefits should not be denied by a
technical, narrow, and strict construction.”). However, “[t]heCommission's conclusions of law are reviewed
de novo.”
McRae v.
Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004).
Change of Condition
[1] N.C. Gen. Stat. § 97-47 provides, in pertinent part, that
[u]pon its own motion or upon the application
of any party in interest on the grounds of a
change in condition, the Industrial Commission
may review any award, and on such review may
make an award ending, diminishing, or
increasing the compensation previously
awarded, subject to the maximum or minimum
provided in this Article[.]
N.C. Gen. Stat. § 97-47 (2005). “A validly executed I.C. Form 21
agreement constitutes an 'award' under the North Carolina Workers'
Compensation Act.”
Apple v. Guilford County, 84 N.C. App. 679,
681, 353 S.E.2d 641, 642,
rev'd on other grounds, 321 N.C. 98, 361
S.E.2d 588 (1987).
“[A] change in condition under N.C.G.S. § 97-47 [is] a
condition occurring after a final award of compensation that is
different from those exist[ing] when the award was made, and
results in a substantial change in the physical capacity to earn
wages.”
Pomeroy v. Tanner Masonry, 151 N.C. App. 171, 179, 565
S.E.2d 209, 215 (2002) (internal citations and quotations omitted).
A change in condition can consist of:
[1] a change in the claimant's physical
condition that impacts his earning capacity,
[2] a change in the claimant's earning
capacity even though claimant's physical
condition remains unchanged, or [3] a change
in the degree of disability even though
claimant's physical condition remains
unchanged.
Blair v. Am. Television & Commc'ns Corp., 124 N.C. App. 420, 423,
477 S.E.2d 190, 192 (1996) (internal citations omitted). “In all
instances, the party seeking modification of an award due to a
'change in condition' has the burden to prove that the new
condition is directly related to the original compensable injury
that is the basis of the award the party seeks to modify.”
Pomeroy, 151 N.C. App. at 179, 565 S.E.2d at 215. Further, with
regard to proving disability in general, this Court has held that,
[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. The
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 has obtained other employment at a
wage less than that earned prior to the
injury.
Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d
454, 457 (1993). These same factors have been applied in
determining whether an employee has met his burden to show a change
in condition under N.C. Gen. Stat. § 97-47.
Grantham v. R.G. Barry
Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997);
Blair,
124 N.C. App. at 425, 477 S.E.2d at 191-92. Here, the Full Commission found as fact, and defendants do not
challenge, that:
4. On January 18, 2001, Dr. Burrows released
the plaintiff from treatment and imposed
permanent restrictions of no lifting over
20-25 pounds with each hand, no forceful
pinching or gripping activities, and no use of
vibratory or impact tools. Dr. Burrows
assigned a five percent (5%) permanent partial
impairment rating to each of the plaintiff's
hands.
It is this disability from which plaintiff has to show a change in
condition impacting his earning capacity in order to support a
change in his benefits under N.C. Gen. Stat. § 97-47. The Full
Commission further found as fact that:
6. The tire painting job required the
plaintiff to lift tires weighing up to 50
pounds, approximately four times each. The
plaintiff processed 300 to 400 tires per day.
As a result, the plaintiff returned to Dr.
Burrows on August 27, 2001, with complaints of
numbness in his fingers and pain in his
wrists. Dr. Burrows' examination demonstrated
“some evidence of median nerve irritation.”
Dr. Burrows diagnosed the plaintiff with a
worsening of his condition, fitted him with
new splints, and recommended that his lifting
restriction be lowered to 20 pounds.
...
8. On October 1, 2001. Dr. Burrows reviewed
the results of the FCE and recommended the
following lifting restrictions: 21 to 50
pounds occasionally, 11 to 25 pounds
frequently, and 1-10 pounds constantly. For
carrying, the restrictions were 51 to 100
pounds occasionally, 26 to 50 pounds
frequently, and 11 to 20 pounds constantly.
Dr. Burrows noted that the plaintiff needed an
additional rating to his hands beyond that
which had already been imposed. Dr. Burrows
forwarded the new restrictions to the
defendant-employer.
Except for the finding concerning an additional rating to
plaintiff's hands, these findings of fact are supported by
competent evidence in the record before this Court. While the Full
Commission erred in finding “Dr. Burrows noted that the plaintiff
needed an additional rating to his hands beyond that which had
already been imposed,” this error does not affect plaintiff's
showing that he had a change of condition in August of 2001 under
N.C. Gen. Stat. § 97-47.
Under plaintiff's initial disability from his carpal tunnel
syndrome he was permitted to lift twenty to twenty-five pounds with
each hand, with no restrictions on the amount of lifting he could
perform during the day. Under the new restrictions imposed from
the findings of the FCE, plaintiff was permitted to lift only
twenty-one to fifty pounds for no more than two hours and thirty-
six minutes each day. This indicates plaintiff's condition had
worsened while working as a tire painter. While plaintiff could
work the light duty job defendant-Michelin briefly assigned him
before terminating his employment, plaintiff could not have
returned to the regular duty jobs he had originally been working.
Thus, plaintiff has shown a change in his physical capacity.
The Full Commission further found:
9. The plaintiff returned to work for
approximately one week at a light duty
position of splicing bands. He was sent home
due to a lack of work and eventually the
defendant-employer informed the plaintiff of a
voluntary resignation program wherein he would
be paid $13,112.80 to voluntarily resign from
employment with the defendant-employer. The
plaintiff executed the voluntary resignation,
which provided that his last day of work wasNovember 9, 2001. The record indicates that
this program was available to a number of
employees, regardless of their disability
status. There is no indication that this
payment was in any manner related to any
compensation the plaintiff may have been due
under the North Carolina Workers' Compensation
Act.
Again, this finding is supported by competent evidence before this
Court. The Full Commission also found as fact, and defendants do
not challenge, that plaintiff subsequently obtained two jobs on his
own, each of which did not affect his carpal tunnel syndrome and
each of which paid less than plaintiff earned while working for
defendant-Michelin. Thus, plaintiff's production of evidence that
he has obtained other employment at a wage less than that earned
prior to the injury is sufficient to show his change in physical
condition has impacted his earning capacity.
The relevant findings of fact made by the Full Commission are
supported by competent evidence in the record before this Court.
These findings of fact support the Commission's conclusion of law
that plaintiff suffered a “change in condition that increased his
symptoms and impacted his earning capacity and his degree of
disability.” As plaintiff has shown a change of condition pursuant
to N.C. Gen. Stat. § 97-47, the Full Commission has the authority
to “make an award ending, diminishing, or increasing the
compensation previously awarded[.]” N.C. Gen. Stat. § 97-47
(2005). The Full Commission did not err in concluding plaintiff
was entitled to workers' compensation benefits for his partial
disability under N.C. Gen. Stat. § 97-30, and correctly concluded
plaintiff was entitled to two-thirds of the difference between hispre-injury wages and his wages earned while working with Homanit,
USA and the City of Albemarle. N.C. Gen. Stat. § 97-30 (2005).
Economic Downturn
[2] Defendants also argue the Commission erred in concluding
that “[u]pon receipt of the plaintiffs new restrictions, the
defendant-employer could no longer provide him with work, impacting
his earning capacity.” This Court has held that the Full
Commission did not err in denying an employee benefits under the
Workers' Compensation Act where the employee was physically able to
perform his former job and the employee's inability to earn wages
was due to a layoff resulting from a downturn in the economy
and
the employee's lack of interest in returning to work.
Segovia v.
J.L. Powell & Co., 167 N.C. App. 354, 356-57, 608 S.E.2d 557, 558-
59 (2004). Here, there is no evidence that plaintiff could have
returned to a light duty job with defendant-Michelin that he was
physically able to perform, and there is evidence that plaintiff
diligently sought work following the termination of his employment
by defendant-Michelin. Further, plaintiff was not physically able
to work in his former regular-duty job. Defendants' argument is
without merit and the Full Commission did not err in concluding
plaintiff was entitled to benefits under the Workers' Compensation
Act.
Constructive Refusal of Employment
[3] Defendants additionally contend plaintiff is not entitled
to recover any workers' compensation benefits due to his
constructive refusal of employment. Specifically, defendants argueplaintiff is not entitled to benefits because plaintiff was fired
from his job with Homanit, USA for excessive unexcused absences,
and because he did not make any efforts to train himself in order
to obtain better employment after defendant-Michelin terminated his
employment. “[T]o bar payment of benefits [for refusal of suitable
employment], an employer must demonstrate initially that: (1) the
employee was terminated for misconduct; (2) the same misconduct
would have resulted in the termination of a nondisabled employee;
and (3) the termination was unrelated to the employee's compensable
injury.”
McRae v. Toastmaster, Inc., 358 N.C. 488, 493, 597 S.E.2d
695, 699 (2004). However,
a showing of employee misconduct is not
dispositive on the issue of benefits if the
employee can demonstrate that his or her
subsequent failure to perform suitable work or
find comparable work was the direct result of
the employee's work-related injuries. . . .
[T]he employee would be entitled to benefits
if he or she can demonstrate that work-related
injuries, and not the circumstances of the
employee's termination, prevented the employee
from either performing alternative duties or
finding comparable employment opportunities.
Id. at 494, 597 S.E.2d at 299.
Here, the Full Commission found:
19. On March 13, 2003, the plaintiff was
terminated by Homanit, USA, for excessive
unexcused absences. The plaintiff's
termination was not related to his compensable
injury and was for reasons a non-disabled
employee would have been terminated. . . .
20. The plaintiff continued to seek employment
and on September 8, 2003, found work with the
City of Albemarle as a water tester at a
treatment plant. The plaintiff remains
employed by the City of Albemarle; however, heis currently “laid off,” pending his passing
of an algebra test.
These findings are supported by competent evidence in the record
before this Court. Based on these findings, the Full Commission
concluded:
5. The plaintiff's termination from his
employment with Homanit, USA, for excessive
unexcused absences constitutes a constructive
refusal of employment. The Court of Appeals in
Seagraves v. Austin Co. of Greensboro, 123
N.C. App. 228, 472 S.E.2d 397 (1996), stated
that in order to bar payment of benefits, an
employer must demonstrate that: (1) the
employee was terminated for misconduct; (2)
the same misconduct would have resulted in the
termination of a nondisabled employee; and (3)
the termination was unrelated to the
employee's compensable injury.
Id. An
employer's successful demonstration of such
evidence is “deemed to constitute a
constructive refusal” by the employee to
perform suitable work, a circumstance that
operates to bar benefits for lost earnings.
Id. Accordingly, the plaintiff is not eligible
for temporary total or temporary partial
disability compensation for the period he was
without employment following the termination
from Homanit, USA.
Defendants argue plaintiff's unexcused absences constitute
constructive refusal of suitable employment and is a complete bar
to any future payment of workers' compensation benefits.
Defendants argue in the alternative that the termination of
plaintiff's employment with Homanit should relieve them of any
requirement to pay workers' compensation benefits based on
plaintiff's future earnings if plaintiff's future average weekly
wage is less than what he earned while working at Homanit.
Defendants also argue plaintiff's failure to “make any efforts to
train himself in order to get better employment” is the reason whyhe is not making higher wages after his termination of employment
with Homanit. Defendants contend plaintiff's failure to obtain a
GED should be deemed a factor towards plaintiff's constructive
refusal of employment.
“The constructive refusal defense is an argument that the
employee's inability to earn wages at pre-injury levels is no
longer caused by his injury; rather, the employer argues, the
employee's misconduct is responsible for his inability to earn
wages at pre-injury levels.”
Williams v. Pee Dee Elec. Membership
Corp., 130 N.C. App. 298, 301, 502 S.E.2d 645, 647 (1998).
Defendants cite to no authority for the proposition that
plaintiff's failure to obtain a GED constitutes misconduct which is
responsible for his inability to earn wages at pre-injury levels,
and this Court can find none. Nor have defendants introduced any
evidence indicating plaintiff is even capable of obtaining a GED or
that once obtained, the jobs available to plaintiff would provide
higher wages than he currently earns. Additionally, plaintiff
presented evidence that he diligently sought a new job after being
fired by Homanit and his evidence supports that his work-related
injuries, and not his unexcused absences, prevented him from
finding “comparable employment opportunities.” Thus, the Full
Commission did not err in concluding plaintiff was barred from
receiving workers' compensation benefits only for the period of
time he was without employment following the termination of his
employment with Homanit.
Multiple Remedies
[4] Finally, defendants argue plaintiff is not entitled to
recover under either N.C. Gen. Stat. § 97-29 or § 97-30 and recover
under N.C. Gen. Stat. § 97-31 at the same time. Plaintiff has
received permanent partial disability benefits under N.C. Gen.
Stat. § 97-31, paid pursuant to the Form 21 agreement. Here, the
Full Commission concluded “plaintiff has shown a change of
condition and is entitled to benefits under N.C. Gen. Stat. § 97-
30[.]” Plaintiff was never awarded benefits under N.C. Gen. Stat.
§ 97-29 and defendants' arguments concerning this provision are
without merit. Plaintiff has shown a change of condition allowing
the Full Commission to modify his award and grant him benefits
under N.C. Gen. Stat. § 97-30, and defendants were given a credit
for the benefits previously paid to plaintiff under § 97-31.
Therefore, the Opinion and Award of the Full Commission does not
award benefits under multiple sections of the Workers' Compensation
Act.
Defendants' assignments of error are overruled.
Affirmed.
Judges McCULLOUGH and LEVINSON concur.
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