Plott v. Bojangle's Restaurants, Inc.

HUDSON, Judge. Plaintiff filed a workers' compensation claim alleging he sustained an injury by accident on 1 November 2002. Defendants denied the claim by Form 61 and plaintiff requested a hearing, which was held 18 November 2003. In June 2004, Deputy Commissioner Adrian A. Phillips entered an opinion and award finding that plaintiff sustained a compensable injury by accident and awarding compensation benefits beginning with the date of plaintiff's injury and "continuing until Plaintiff returns to work or further order by the Commission." Defendants appealed to the Full Commission, which modified the opinion and award, concluding that although plaintiff sustained a compensable injury by accident, defendants had offered plaintiff suitable employment and that plaintiff was entitled to benefits only from the time of the injury until plaintiff was released to work in February 2003, because plaintiff failed to make reasonable efforts to find suitable employment since being released. Plaintiff appeals. We reverse and remand. The evidence of record tends to show the following facts. On 1 November 2002, while working as a unit manager at Bojangle's Restaurant, plaintiff tripped over a hose in the front of the store, slipped and began to fall but was able to catch himself. Plaintiff felt pain in his back and reported the incident immediately to an on-site area director for defendant-employer. Plaintiff completed his shift and returned to work the following day. On 3 November 2002, plaintiff sought medical treatment from Primecare, who released plaintiff to work in a sedentary capacity beginning on 4 November 2002. Defendants contend that they offered to accommodate plaintiff's restrictions for about a month after his injury, and it is undisputed that plaintiff did not return to work. On 12 November, plaintiff saw his primary care physician, Dr. Lon Morgan, who wrote plaintiff out of work from 12 November to 18 November. Plaintiff followed up with Dr. Morgan on 19 November 2002, at which time Dr. Morgan recommended plaintiff stay out of work another week. On 2 December 2002, plaintiff saw Dr. Christopher Bashore, an orthopedic surgeon, who released plaintiff to return to light duty work with restrictions. On 10 December 2002, Dr. William Brown, a neurosurgeon, examined plaintiff, prescribed epidural steroid injections, and wrote plaintiff out of work until that course of treatment was completed. Dr. Brown released plaintiff to work with significant permanent restrictions on 24 February 2003. At the hearing, plaintiff testified, and defendant-employer's human resources manager confirmed, that defendant could not accommodate the restrictions suggested by Dr. Brown during this period. On 13 June 2003, Dr. Brown wrote plaintiff out of work from 3 December 2002 to 3 August 2003, and on 6 August 2003, Dr. Brown wrote plaintiff out of work "indefinitely." At the hearing, plaintiff testified that he had not worked or sought work since November 2002 because of his pain and limitations. Plaintiff also testified that defendants had not offered vocational services. During his deposition, Dr. Brown testified that he believes that plaintiff could do some sort of work "if enough restrictions are applied," and recommended that plaintiff "[f]ind a different type of job." Plaintiff has a high school diploma and has taken a couple of courses in machine shop. Prior to beginning his employment with defendant in 1999, plaintiff had worked as a forklift operator, as a machine operator, at K-Mart in deli/food service, had managed a McDonald's restaurant, and had worked at a pizza restaurant. In his brief, plaintiff argues that there was insufficient evidence to support the Commission's findings and conclusion that defendant offered him a light duty position *574that would accommodate his restrictions. Defendant argues that plaintiff was not entitled to benefits because of N.C. Gen.Stat. § 97-32 (2004), which states that "[i]f an injured employee refuses employment procured for him suitable to his capacity he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified." Id. Here, the Commission concluded that 4. Plaintiff was offered sedentary employment at his preinjury wage by defendant but refused to attempt this employment and has not made reasonable efforts to find suitable employment since being released to return to work on 24 February 2003. Plaintiff is therefore not entitled to ongoing weekly disability benefits. N.C.G.S. 97-32. N.C. Gen.Stat. § 97-32 is entitled "Refusal of injured employee to accept suitable employment as suspending compensation," and applies where an employer seeks to "discontinue disability payments." Williams v. Pee Dee Electrical Membership Corp., 130 N.C.App. 298, 301, 502 S.E.2d 645, 647 (1998) (emphasis added). See also Smith v. Sealed Air Corp., 127 N.C.App. 359, 361, 489 S.E.2d 445, 447 (1997). However, it is undisputed that defendant had not accepted compensability for plaintiff's claim and that plaintiff had not been receiving any workers' compensation benefits. Since a suspension of compensation under section 97-32 is by definition temporary and a plaintiff can restore benefits by discontinuing the refusal, it is illogical to apply section 97-32 to a claim that has been denied and is in litigation. Here, even if plaintiff had accepted defendant's job, he was receiving no benefits which could have then resumed. We thus conclude that the Commission erroneously applied N.C. Gen.Stat. § 97-32 here. Plaintiff also argues that he proved his disability, but that the Commission failed to make findings as to his disability or its extent. "In order to obtain compensation under the Workers' Compensation Act, the claimant has the burden of proving the existence of his disability and its extent." Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986). A plaintiff can meet this burden 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. Silva v. Lowe's Home Improvement, ___ N.C.App. ___, ___, 625 S.E.2d 613, 620 (2006) (citing Russell v. Lowes Product Distribution, 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993)). If the claimant meets this initial burden, the burden shifts to the defendant to show that "suitable jobs are available, [and] also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations." Kennedy v. Duke Univ. Medical Ctr., 101 N.C.App. 24, 33, 398 S.E.2d 677, 682 (1990). "The findings of the Industrial Commission are conclusive on appeal when supported by competent evidence even though there be evidence to support a contrary finding." Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). "However, the Commission's legal conclusions are reviewable by the appellate courts." Id. "While the Industrial 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." Gaines v. L.D. Swain & Son, Inc., 33 N.C.App. 575, 579, 235 S.E.2d 856, 859 (1977). "Where the findings are insufficient to enable the court to determine the rights of the parties, the case must be remanded to the Commission for proper findings of fact." Lawton v. County of Durham, 85 N.C.App. 589, 592, 355 S.E.2d 158, 160 (1987). Here, the Commission made no findings regarding the nature of plaintiff's disability or its extent. The Commission found that *575doctors released plaintiff to work and that defendant-employer offered plaintiff "a position within his restrictions," but that "Plaintiff refused to attempt this position and subsequently failed to seek employment." However, the Commission made no detailed findings as to plaintiff's physical injuries and limitations or as to any of the Russell factors. Because the Commission's findings here are insufficient to enable us "to determine the rights of the parties, the case must be remanded to the Commission for proper findings of fact." Lawton at 592, 355 S.E.2d at 160. Reversed and remanded. Judge WYNN concurs. Judge TYSON dissents in a separate opinion. The judges participated and submitted this opinion for filing prior to 1 January 2007.