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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 7 August 2007
NORMAN HOOD, employee
From: The Industrial
I.C. No. 273087
THE MANGUM GROUP,
Appeal by defendants from opinion and award entered 24 May
2006 by Commissioner Christopher Scott for the North Carolina
Industrial Commission. Heard in the Court of Appeals 15 March
Lewis & Roberts, P.L.L.C., by Jeffrey A. Misenheimer and
Timothy S. Riordan, for defendants-appellants.
Younce & Vtipil, P.A., by Robert C. Younce, Jr., for
A full panel of the North Carolina Industrial Commission (Full
Commission) awarded Norman W. Wood (plaintiff) workers'
compensation payments for disability and medical expenses on 24 May
2006. It is from this opinion and award that the Mangum Group,
Inc. (defendant-employer) and Zurich US (defendant-carrier,
together, defendants) appeal. Plaintiff, born 11 February 1946, started work for defendant-
employer on 6 August 1990 as a service technician who maintained
heavy equipment such as earth movers, bulldozers, backhoes, pavers,
and dump trucks. He earned $15.50 an hour and an average weekly
wage of $813.26. Plaintiff changed oil and air filters and
replaced cutting blades on bulldozers and teeth on backhoes.
Carrying out the duties required plaintiff to crawl, stretch, reach
overhead, and bend to access various parts of machinery. These
tasks included carrying blades that weighed between forty and one
hundred pounds and reached four feet in length.
Plaintiff was servicing a JCB rubber tire backhoe on 8 March
2002 when the backhoe's driver accidentally struck him with the
bucket. The blow struck plaintiff in the right chest area,
throwing him against the air compressor of a nearby truck before he
ultimately landed under the truck's drive shaft. Plaintiff injured
his left shoulder in the fall. Plaintiff reported his injury to
defendant-employer, but at the time did not seek medical attention
or miss time from work.
Following the incident, plaintiff experienced increased pain
in his left shoulder, and on 11 June 2002, defendant-employer sent
him to Concentra Medical Centers for treatment. Doctors diagnosed
plaintiff with a left shoulder contusion and shoulder impingement.
Plaintiff had surgery on 27 January 2003 to repair his left rotator
cuff. Defendant-employer paid for the surgery and for plaintiff's
temporary total disability until plaintiff returned to his job as
a service technician on 17 March 2003. Upon his return, plaintiff was unable to perform all of his
previous duties because of doctor-ordered light work restrictions.
He could not bend, crawl, squat, stoop, perform overhead work, lift
more than twenty pounds, or climb above a standing height of six
feet. The limitations prevented plaintiff from performing about
half of his former job-related tasks and also slowed down his work
pace by about fifty percent. Plaintiff testified that he would sit
in his truck for about three or four hours of an eight-hour shift
and that supervisor Phil Strain told him, It's kind of hard to
find something for you to do with these restrictions, and that
human resources vice president Kathy Vaught said, Well, come in
and do what you can. Defendant-employer offered plaintiff a job
as a parts runner, but he declined to take it.
Dr. William Lestini (Lestini) ordered plaintiff to stop
working on 16 June 2004. Lestini diagnosed plaintiff with cervical
spondylosis, lumbar canal stenosis, shoulder rotator cuff
pathology, and ulnar neuropathy. Lestini testified that
plaintiff's conditions probably resulted from a degenerative
spine that was aggravated by the trauma of his work-related injury.
On 22 December 2004, defendant-employer laid off plaintiff,
who received unemployment compensation but no workers' compensation
during this time. Plaintiff began working part-time for defendant-
employer on 5 March 2005.
Defendant-employer accepted plaintiff's claim for a
compensable injury. Plaintiff filed a request for a hearing on
suitable employment. Based on depositions from vocationalevaluation experts Dr. Tina Bryant (Bryant) and Dr. Stephen
Carpenter (Carpenter), the Industrial Commission found on 10
November 2005 that defendant-employer did not have suitable
employment for plaintiff and plaintiff's refusal to accept the
proposed position was not grounds for suspension of disability
benefits. It awarded plaintiff temporary total disability benefits
from the last date he worked for defendant-employer until he finds
further employment. The Industrial Commission also awarded
plaintiff temporary partial disability benefits from the time that
he returned to part-time work on 5 March 2005 and continuing for a
maximum of 300 weeks. Defendants appealed the opinion and award to
the Full Commission, which on 24 May 2006 affirmed the Industrial
Commission's opinion and award.
I. Suitable Employment
Defendants first argue that plaintiff refused suitable
employment, negating their requirement to pay compensation. We
Upon review by this Court, the Full Commission's findings of
fact and conclusions of law must be backed by competent evidence.
Ard v. Owens-Illinois, __ N.C. App. __, __, 642 S.E.2d ___, ___
(2007). As long as there is some evidence of substance which
directly or by reasonable inference tends to support the findings,
this Court is bound by such evidence, even though there is evidence
that would have supported a finding to the contrary. Id. at __,
642 S.E.2d at ___ (quotation and citation omitted). An injured employee who refuses work suitable to his limited
capacities is not entitled to compensation unless the Commission
finds the refusal justified. N.C. Gen. Stat. § 97-32 (2005).
Suitability encompasses physical and mental abilities, pre- and
post-injury salaries, and potential for advancement and income
growth, among other factors. Dixon v. City of Durham, 128 N.C.
App. 501, 504, 495 S.E.2d 380, 383 (1998). Proffered employment
would not accurately reflect earning capacity if other employers
would not hire the employee with the employee's limitations at a
comparable wage level because an employee without the ability to
earn wages competitively would be left without income if his job
were terminated. Peoples v. Cone Mills Corp., 316 N.C. 426, 438,
342 S.E.2d 798, 806 (1986). Work so modified to meet the
employee's limitations due to injury does not constitute a proper
measure of the employee's ability to earn the same wages in a
competitive job market if other employers would not offer a similar
job at a comparable wage. Saums v. Raleigh Community Hospital, 346
N.C. 760, 765, 487 S.E.2d 746, 750 (1997).
Plaintiff presented competent evidence that the work
defendant-employer offered was unsuitable. Upon returning to his
job as a service technician, plaintiff's physical restrictions
caused him to work at a much slower pace than before and limited
the tasks he could perform. Plaintiff's supervisors acknowledged
that it was difficult to find work for him. Still, plaintiff
continued to collect his wage, even earning overtime in busy
periods. However, plaintiff spent time sitting in his truck asother technicians worked. Given plaintiff's restrictions and
inability to perform at the same level as others with his job
title, it appears unlikely that another employer would hire
plaintiff for a similar position. See Saums, 346 N.C. at 765, 487
S.E.2d at 750. This modified work did not accurately reflect
plaintiff's ability to earn wages in a competitive environment.
Peoples, 316 N.C. at 438, 342 S.E.2d at 806.
Defendant-employer also offered plaintiff a job as a parts
runner. This position proved unsuitable because driving for long
periods of time aggravated plaintiff's back pain. Most general
parts runner positions require lifting objects that exceed
plaintiff's weight restrictions, hindering his ability to perform
those duties. Finally, parts running jobs generally start at $8.00
per hour with the potential to earn up to $10.00 or $12.00 per
hour. These factors make the parts runner position unsuitable.
Defendants next argue that the Full Commission erred in
awarding plaintiff disability benefits, both temporary total
benefits and temporary partial benefits. Defendants allege that
plaintiff was capable of performing all of his duties upon
returning to work after surgery. We disagree.
Defendant-employer will pay a plaintiff totally incapable of
employment 66 . percent of his average weekly wages. N.C. Gen.
Stat. § 97-29 (2005). Defendant-employer will pay a plaintiff
partially incapable of employment 66 . percent of the differencebetween his average weekly wages before the injury and the average
weekly wages he is able to earn after the injury. N.C. Gen. Stat.
§ 97-30 (2005). The compensation period for partial disability
continues for a maximum of 300 weeks. Id
. Total disability
benefits may not run concurrently with temporary partial benefits.
N.C. Gen. Stat. § 97-29 (2005) (In case the partial disability
begins after a period of total disability, the latter shall be
deducted from the maximum period allowed for partial disability.).
Disability is defined by statute as incapacity because of
injury to earn the wages which the employee was receiving at the
time at the time of injury in the same or any other employment.
N.C. Gen. Stat. § 97-2(9) (2005). In a workers' compensation
claim, the plaintiff bears the burden of proving his incapacity to
earn the same wages he had earned before the injury. Harris v.
North American Products
, 125 N.C. App. 349, 354, 481 S.E.2d 321,
324 (1997). The plaintiff may prove his disability by any of four
methods: (1) producing medical evidence that, because of a work-
related injury, he is physically incapable of work in any
employment; (2) producing evidence that he is capable of some work,
but after a reasonable effort, is unable to find employment; (3)
producing evidence that he is capable of some work, but pre-
existing conditions such as age, lack of education, or inexperience
render that option futile; or (4) producing evidence that he has
obtained employment at a wage less than he earned prior to the
injury. Russell v. Lowes Product Distribution
, 108 N.C. App. 762,
765-66, 425 S.E.2d 454, 457 (1993) (citation omitted). A plaintiffwho can work and earn some wages, but less than he earned before
the injury, is partially disabled. Harris
, 125 N.C. App. at 354,
481 S.E.2d at 324.
Plaintiff produced competent evidence at trial to prove his
disability under three of the four methods established by Russell
108 N.C. App.
at 765, 425 S.E.2d at 457. Vocational tests
show plaintiff reads at a seventh-grade level, spells at a sixth-
grade level, and performs arithmetic at a fifth-grade level. These
proficiency levels disqualify plaintiff from many clerical,
administrative, or office positions. Plaintiff's advanced age,
demonstrated deficiencies on memory, concentration and attention
tests, and inexperience in work outside of manual labor will make
re-training for a new type of vocation difficult. These pre-
existing conditions prevent plaintiff from finding other employment
and make futile his attempts to secure other employment. This
evidence satisfies plaintiff's proof of disability under the third
108 N.C. App.
at 765, 425 S.E.2d at 457.
Plaintiff's only significant work experience has come from
manual labor, and dexterity tests show that his post-injury
condition prohibits him from fast-paced repetitive work and work
that requires him to grip and handle objects with his dominant
right hand. Though plaintiff's physical limitations do not allow
him to perform heavy labor, he is capable of light or sedentary
work. However, this type of employment generally pays $6.00 per
hour. This figure falls below the $15.50 per hour plaintiff earned
prior to the injury. If plaintiff were to gain employment in thisfield, his post-injury salary would be lower than his pre-injury
salary, satisfying a claim for disability under the fourth Russell
108 N.C. App.
at 765, 425 S.E.2d at 457.
Lestini permanently restricted plaintiff to lifting no more
than twenty pounds, performing light bench work, climbing no higher
than standing height, and abstaining from overhead work. Lestini
said he thought plaintiff should be released . . . with permanent
total disability. Based on these restrictions, vocational
evaluation experts Bryant and Carpenter
(See footnote 1)
testified that plaintiff
could no longer perform his regular duties as a service technician.
Based on these opinions, plaintiff was not physically capable of
working as a service technician because of his work-related injury.
This evidence satisfies plaintiff's proof that he is not capable of
any work, satisfying the first Russell
Once plaintiff began part-time work for defendant-employer on
5 March 2005, he no longer qualified for total disability under
N.C. Gen. Stat. § 97-29. See Tucker v. Lowdermilk
, 233 N.C. 185,
189, 63 S.E.2d 109, 112 (1951) ([I]f an award is made, payable
during disability, and there is a presumption that disability lasts
until the employee returns to work, there is likewise a presumptionthat disability ended when the employee returned to work.).
However, plaintiff may recover partial disability compensation
and N.C. Gen. Stat. § 97-30 because his part-time
wages did not meet or exceed his weekly wage of $813.26 at the time
of his injury.
Judges McGEE and STEPHENS concur.
Report per 30(e).
Defendants challenge Carpenter's opinions as suspect based
on his previous experience testifying primarily for plaintiffs in
other workers' compensation claims. However, this Court has held
that the competency of an expert witness is a question addressed
primarily to the sound discretion of the trial court and that
[t]he fact that the witness is . . . a consultant specially
retained by a party to the litigation  does not disqualify him
as an expert. The effect of this circumstance upon the weight to
be given his opinion is for the trial body to determine. Credit
Co. v. Concrete Co.
, 31 N.C. App. 450, 459-60, 229 S.E.2d 814,
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