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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 04 December 2007
From the North Carolina
SELF INSURED RISK MANAGEMENT
SERVICES, INC. SERVICING AGENT,
Appeals by employee-plaintiff and employer-defendant from an
opinion and award entered 12 December 2005 by the North Carolina
Industrial Commission. Heard in the Court of Appeals 9 January
Brumbaugh, Mu & King, P.A., by Kenneth W. King, Nicole D.
Wray, and Maggie S. Bennington, for employee-plaintiff.
Hedrick Eatman Gardner & Kincheloe, L.L.P., by Shelley W.
Coleman, Tracie H. Brisson, and M. Duane Jones, for employer-
defendant and carrier-defendant.
Eleaner Russo's (plaintiff) benefits were properly suspended
when plaintiff, despite advice from multiple physicians that a
return to light-duty work would be therapeutic, refused Food Lion's
(defendant and with Risk Management Services, defendants) offerof employment suitable to her condition. Plaintiff made no effort
to obtain suitable employment on her own. The Industrial
Commission did not err in suspending, rather than terminating,
plaintiff's compensation benefits based upon her refusal of
The relevant undisputed facts, as found by the Industrial
Commission, are as follows. Plaintiff began working for defendant
on 20 November 1994. On 1 July 1999 while working in her duties as
Customer Service Manager, plaintiff slipped on some grapes and
grabbed a conveyor belt near the cash register in order to break
her fall. Upon grabbing the conveyor belt she heard a loud noise
in her right arm and experienced immediate pain. The same day,
plaintiff was examined by Dr. Patricia Miller, who diagnosed a
sprain of plaintiff's neck and upper right arm. Dr. Miller took
plaintiff out of work until 5 September 1999 when plaintiff resumed
light-duty work with defendant. On 7 September 1999, defendant
filed an Industrial Commission form 60, Employer's Admission of
Employee's Right to Compensation, admitting plaintiff's
disability, and paid temporary disability benefits to plaintiff
from 1 July 1999 through 4 September 1999 and partial disability
benefits from 5 September 1999 through 11 September 1999. On 7
September 1999 plaintiff was examined by Dr. Neil Conti upon
referral from Dr. Miller. Dr. Conti diagnosed right carpal tunnel
syndrome, right trapezial strain, and right shoulder tendinitis.
Plaintiff elected not to proceed with an EMG recommended by Dr.
Conti, and Dr. Conti released plaintiff to full duty work as of 12September 1999. Plaintiff resumed her regular work duties and did
not have any absences from work or seek medical treatment until 22
February 2000 when she returned to Dr. Conti and complained of
right arm pain, including a burning sensation with swelling and
redness. Dr. Conti again recommended an EMG and nerve condition
study and removed plaintiff from work until 5 April 2000. The EMG
and nerve condition studies were conducted on 4 April 2000, and
revealed carpal tunnel syndrome in plaintiff's left arm, but not in
her right arm. Dr. Conti diagnosed plaintiff with complex regional
pain syndrome (CRPS) to the right extremity. On 25 April 2000,
Dr. Conti examined plaintiff again, and while she still exhibited
symptoms of CRPS, Dr. Conti released plaintiff to light-duty work
because of the therapeutic benefits of using the CRPS-affected
extremity. Dr. Conti also recommended physical and occupational
therapy and pain clinic consultation, which plaintiff refused.
Plaintiff was seen by Dr. Thomas Kern Carlton, III, on 22 June
2000. Dr. Carlton found no symptoms of CRPS. He concluded that
plaintiff was capable, at a minimum, of left-handed work. On 18
July 2000, Dr. Conti reaffirmed his recommendation that plaintiff
perform light-duty work with her left hand and referred plaintiff
to a hand specialist for treatment of her right hand. Dr. Conti
informed plaintiff that light-duty work would be therapeutic for
the symptoms in her right hand.
Defendant offered for plaintiff to participate in a Temporary
Alternative Duty (TAD) program for injured workers on 27 July
2000. TAD is a program which tailors work duties to accommodateworkers who have been injured until they are able to return to
full-duty work. Wages for TAD are at the minimum wage. However,
employees continue to be eligible for workers' compensation
benefits while participating in the program. On 27 July 2000,
defendant wrote to plaintiff explaining the TAD program and
requesting that she return to work on 3 August 2000 to perform work
within her medical restrictions. Defendant's letter stated that a
failure to report for duty would be interpreted as a lack of
desire on your part to continue employment with our company.
Plaintiff did not report for work.
On 11 August 2000, Dr. James Post examined plaintiff upon Dr.
Conti's referral. Dr. Post's examination revealed no signs of CRPS
whatsoever, and in fact, Dr. Post noted that plaintiff's complaints
might very well be fictitious. Dr. Post recommended that
plaintiff return to at least light-duty work with her left hand.
On 29 August 2000, plaintiff underwent a cervical MRI at the
request of Drs. Carlton and Post. The MRI results showed that any
cervical abnormalities were not the cause of any right extremity
condition plaintiff might have. On 26 September 2000, defendant
filed an Industrial Commission Form 24, an application to terminate
or suspend payment of compensation. Defendant sought to terminate
plaintiff's benefits. The case summary attached to the form
explained that the application was being made due to plaintiff's
refusal to return to suitable employment.
On 3 October 2000, Dr. Zane Walsh examined plaintiff and
reported that plaintiff's range of motion appeared to improve withdistraction and that her reports of pain were out of proportion to
his objective findings. Dr. Walsh's diagnosis was chronic pain,
and he recommended that plaintiff return to work using her left
hand, limiting her right hand use to non-repetitive motions, and
avoiding lifting of that arm. On 25 October 2000, and upon
referral by plaintiff's family physician, plaintiff was examined by
Dr. Kenneth Oswalt, a pain medicine specialist. Dr. Oswalt
diagnosed plaintiff with CRPS and excused her from work for one
month while she participated in pain management therapies.
None of plaintiff's treating doctors causally related
plaintiff's ongoing right extremity pain after 18 July 2000 to her
injury of 1 July 1999. Plaintiff filed an Industrial Commission
form 33 requesting a hearing upon defendant's failure to pay
workers' compensation benefits.
On 11 December 2000, plaintiff was again examined by Dr.
Oswalt who manipulated her right shoulder under sedation and
determined that her limited range of movement was not due to a
mechanical problem. He recommended plaintiff undergo a stellate
ganglion block procedure as a further diagnostic procedure.
Plaintiff refused to undergo the procedure, and Dr. Oswalt
subsequently prescribed a Catepres patch for pain. On 16 February
2001, plaintiff reported to Dr. Oswalt that the Catepres patch was
improving her symptoms. Dr. Oswalt continued this course of
treatment in addition to physical therapy and also recommended a
consultation with a pain psychologist. During a visit with Dr.
Oswalt on 1 March 2001, plaintiff complained of increased pain andminimal discoloration and mottling of the right hand. The symptoms
resolved prior to the end of the visit, and Dr. Oswalt spoke to
plaintiff for five to ten minutes concerning the importance of
using her right hand as much as possible to minimize the secondary
complications of disuse.
On 6 April 2001, plaintiff visited Dr. Thomas Kern for a
psychological examination. Dr. Kern diagnosed plaintiff with
adjustment disorder with depressed mood and chronic pain disorder
associated with plaintiff's general medical condition and life
A hearing was held before a deputy commissioner on 5 April
2001. Dr. Oswalt reevaluated plaintiff on 8 May and 16 May 2001,
continuing use of the Catepres patch, and renewing his
recommendation of the stellate ganglion block. Plaintiff was
again encouraged to use the right hand as much as possible. On 5
June 2001, plaintiff informed Dr. Oswalt that she was not going to
undergo the recommended stellate ganglion block procedure until her
depression was under control.
On 16 July 2002, Deputy Commissioner Gheen ordered defendant
to pay total disability payments to plaintiff from 22 February 2000
until further order of the Commission. Both plaintiff and
defendant appealed to the Full Commission. The Commission filed an
opinion and award on 12 December 2005, reversing the opinion and
award of the deputy commissioner. The Commission held that in
light of plaintiff's refusal to take the proffered TAD light-duty
position offered by defendant, along with her refusal to look forany other suitable employment, plaintiff had constructively
refused suitable employment and forfeited her right to benefits
during the time of such refusal pursuant to N.C.G.S. § 97-32.
Defendant's Form 24 application was granted, effective with the
date of filing, 27 September 2000. The Commission did not
terminate plaintiff's benefits as requested by defendant. Rather,
it suspended benefits until such time as plaintiff ceased refusing
suitable employment. The Commission further held that defendant
was entitled to a credit for all benefits paid after 3 August 2000
against any further benefits that may be awarded to plaintiff.
Both plaintiff and defendants appealed the Commission's opinion and
Standard of Review
The standard of review on appeal to this Court from an award
by the Commission is whether there is any competent evidence in the
record to support the Commission's findings and whether those
findings support the Commission's conclusions of law. Oliver v.
, 143 N.C. App. 167, 170, 544 S.E.2d 606, 608 (2001)
(citations omitted). Therefore, if there is competent evidence to
support the findings, they are conclusive on appeal even though
there is plenary evidence to support contrary findings. Id
Full Commission is the sole judge of the weight and credibility of
the evidence. Trivette v. Mid-South Mgmt., Inc.,
154 N.C. App.
140, 144, 571 S.E.2d 692, 695 (2002) (citation and internal quotes
omitted). This Court reviews the Commission's conclusions of law
. Ramsey v. Southern Indus. Constructors, Inc.,
178 N.C.App. 25, 30, 630 S.E.2d 681, 685 (2006) (internal citations
We first note that plaintiff has made a general exception to
14 findings of fact in two assignments of error. It is
well-established that '[a] single assignment generally challenging
the sufficiency of the evidence to support numerous findings of
fact, as here, is broadside and ineffective.' State v. Sutton, 167
N.C. App. 242, 244-45, 605 S.E.2d 483, 485 (2004) (citations
omitted). The findings of fact made by the Commission are
therefore binding on appeal. Id. at 245, 605 S.E.2d at 485.
Further, plaintiff makes no argument in her brief contesting any
specific finding of fact, which serves as a further ground to
declare them abandoned and binding on appeal. See N.C. R. App. P.
28(a) (2007); Summers v. City of Charlotte, 149 N.C. App. 509, 517,
562 S.E.2d 18, 24 (2002). Plaintiff's single assignment of error
contesting 16 conclusions of law is broadside and violates N.C. R.
App. P. 10(c)(1) in that it is not confined to a single issue of
law and does not [state] plainly. . . the [legal] basis upon
which error is assigned. Lumsden v. Lawing, 107 N.C. App. 493,
498-99, 421 S.E.2d 594, 597 (1992). We therefore only consider
whether the findings of fact support the conclusions of law and the
conclusions support the judgment. Id. at 499, 421 S.E.2d at 598
(citation omitted). Plaintiff argues that defendant's TAD program was make work
under the rationale of Peoples v. Cone Mills Corp., 316 N.C. 426,
342 S.E.2d 798 (1986), and Saums v. Raleigh Community Hosp., 346
N.C. 760, 487 S.E.2d 746 (1997). These cases deal with situations
in which the employee had reached maximum medical improvement,
which is not the case here. We hold that the Industrial Commission
properly applied the test set forth in Seagraves v. Austin Co., 123
N.C. App. 228, 472 S.E.2d 397 (1996), to the instant case.
The Commission suspended plaintiff's temporary total
disability benefits based upon her refusal of suitable employment.
N.C. Gen. Stat. § 97-32 (2005). The Commission concluded
plaintiff's refusal of the TAD position, along with her
unwillingness to seek any other employment, constituted
constructive refusal of suitable employment. See McRae v.
Toastmaster, Inc., 358 N.C. 488, 597 S.E.2d 695 (2004); Cf. Allen
v. Roberts Elec. Contractors, 143 N.C. App. 55, 546 S.E.2d 133
(2001); Seagraves, 123 N.C. App. 228, 472 S.E.2d 397. Particularly
relevant was the fact that all her physicians advised plaintiff
that appropriate employment would be therapeutic for her affected
[T]he 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.
Therefore, in such cases the employer must
first show that the employee was terminated
for misconduct or fault, unrelated to the
compensable injury, for which a nondisabledemployee would ordinarily have been
terminated. If the employer makes such a
showing, 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.
Seagraves at 234, 472 S.E.2d at 401 (test adopted by McRae, 358
N.C. at 495, 597 S.E.2d at 700). In disputes like the one at bar,
the critical area of inquiry into the circumstances of an injured
employee's termination is to determine from the evidence whether
the employee's failure to perform is due to an inability to perform
or an unwillingness to perform. McRae at 494, 597 S.E.2d at 700
(emphasis in original).
The Seagraves test first requires that plaintiff's termination
from Food Lion have a basis independent from her compensable
injury. The Commission's findings of fact, which are binding in
this appeal, clearly state that plaintiff was offered suitable
employment by Food Lion, and that plaintiff never responded to this
offer of employment. Multiple physicians testified the offered
position would likely be therapeutic for plaintiff's condition.
Further findings state that plaintiff made no attempt whatsoever to
obtain any form of suitable employment. The Commission determined
that plaintiff was removed from the Food Lion payroll due to her
misconduct in failing to respond in any manner to the offer of
employment in the TAD program. The Commission found that plaintiff
was only removed from the active payroll after 12 months withoutearning a paycheck, and that any non-disabled employee would have
been removed from the active payroll in those same circumstances.
The Commission's findings support its conclusion that defendants
met their burden for the first prong of the Seagraves test.
Defendants having met their burden in the Seagraves test,
plaintiff was required to show that her inability to find suitable
employment of any kind was due to her work-related disability.
Because the Commission found as fact that plaintiff was capable of
work (and in fact that work would be therapeutic for plaintiff's
condition), that plaintiff made no attempt whatsoever to find
suitable employment, and that she refused the TAD employment
offered by Food Lion, plaintiff has clearly failed to carry her
burden. We hold that the Commission's findings of fact support its
conclusions of law that plaintiff constructively refused suitable
employment in violation of N.C. Gen. Stat. § 97-32. The suspension
of plaintiff's benefits was supported by the findings of fact and
conclusions of law, and is therefore justified. Plaintiff's appeal
is without merit.
Defendants contend that the full Industrial Commission erred
in suspending, rather than terminating, plaintiff's benefits. We
Defendants argue that the Commission erred in its conclusion
of law number five, which stated that because plaintiff had failed
to meet her ongoing burden of proving that her upper extremities
conditions are actually related to the July 1, 1999 injury,defendants are entitled to suspend plaintiff's workers'
compensation benefits. . . . Defendants contend that because the
Commission determined plaintiff had failed to show any ongoing
disability related to her 1 July 1999 accident, her benefits should
have been terminated, not suspended.
We first note that defendants' appeal is not properly before
us. Subsequent to plaintiff's 1 July 1999 accident, defendant Food
Lion filed a Form 60 in this matter, admitting plaintiff's right to
compensation pursuant to N.C. Gen. Stat. § 97-18(b) (2005).
Defendant Food Lion paid plaintiff's compensation benefits without
protest until she returned to work, and then reinstated her
benefits when she was once again removed from work pursuant to Dr.
Conti's recommendation. This action was initiated by defendant's
filing of a Form 24 Application to Terminate or Suspend Payment of
Compensation Pursuant to N.C. Gen. Stat. § 97-18.1. In the form,
defendant requested termination of benefits. In section A(6),
which requests the grounds supporting defendant's request for
termination, defendant wrote See attached case summary. The
attached case summary stated that defendant sought to terminate
plaintiff's benefits because she had been released to work by her
physicians, yet refused the offered TAD position. Nowhere in
defendant's Form 24 do they contend benefits should be terminated
based upon an absence of disability associated with plaintiff's 1
July 1999 accident. In the Pretrial agreement, defendants did
propose as an issue whether plaintiff has been disabled at any time
after 3 August 2000. However, at the 5 April 2001 hearing beforeDeputy Commissioner Gheen, defendants' attorney stated that there
was a single issue to be addressed.
To put it in its most simple terms, if I can,
Your Honor, the issue is that the defendants
contend that the plaintiff was released to
light-duty work and was offered a position in
- I represent Food Lion - in Food Lion's
light-duty program and that she should have
participated in that program. The plaintiff
contends that she rightfully refused to
participate in that program, and I think we're
down to that. I suppose to the extent that
there could be medical issues about causes of
her problems, that could be a tangential
issue, but it would only be that, tangential
to the main issue.
Plaintiff's attorney agreed that this correctly stated the single
contested issue. Therefore, the contested issue was limited to
whether plaintiff justifiably or unjustifiably refused employment,
and the medical issues were relevant only insofar as they shed
light on plaintiff's ability to work, and the appropriateness of
her refusal of the TAD position.
In the depositions of the physicians, though there was
occasional questioning relevant to plaintiff's disability and its
relation to the compensable injury by accident of 1 July 1999, the
vast majority of the questioning concerned plaintiff's ability to
return to work following 3 August 2000, with no particular focus on
whether plaintiff was disabled as defined by our worker's
compensation law, and no particular focus on whether any disability
was causally related to the 1 July 1999 injury. We note that all
of these depositions followed the hearing of 5 April 2001, where
the attorneys limited the contested issue to plaintiff's refusal of
the proffered TAD position. Further, though the Commission made findings of fact and
conclusions of law concerning evidence of plaintiff's disability,
it is apparent that the focus of its opinion and award was
plaintiff's refusal of suitable employment. The first section of
the award states that Defendant's Form 24 Application is hereby
granted. . . . Defendant's form 24 application was solely based
upon plaintiff's refusal of suitable employment. Further, the
second section of the award states: Plaintiff's workers'
compensation benefits shall remain suspended until such time as her
refusal of suitable employment ceases. This result is authorized
by N.C. Gen. Stat. § 97-32. Nowhere in the award does it suggest
the award was based upon any failure by plaintiff to prove
continuing disability. Defendants' appeal is dismissed.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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