Thornton v City of Raleigh, et al
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA11-1503 NORTH CAROLINA COURT OF APPEALS Filed: 4 September 2012 WANDA G. THORNTON, Employee, Plaintiff v. North Carolina Industrial Commission I.C. No. 216738 CITY OF RALEIGH, Employer, SELF-INSURED (N.C. LEAGUE OF MUNICIPALITIES, Third-Party Administrator), Defendant Appeal September by 2011 plaintiff by the from North opinion Carolina and award Industrial entered 19 Commission. Heard in the Court of Appeals 25 April 2012. Lennon, Camak & Bertics, PLLC, by George W. Lennon, for plaintiff-appellant. Teague, Campbell, Dennis & Gorham, Inman, for defendant-appellee. L.L.P., by Brad G. CALABRIA, Judge. Wanda G. Thornton ( plaintiff ) appeals from an opinion and award by the Full Commission of the North Carolina Industrial Commission plaintiff s ( the Commission ) temporary total which upheld disability the suspension benefits due of to -2plaintiff s unjustified refusal to accept suitable employment. We affirm in part and remand for additional findings of fact in part. I. Background In March 1990, plaintiff began working for the City of Raleigh, North Carolina ( defendant ) as a water meter mechanic. On 6 February 2002, plaintiff sustained an injury to her right shoulder while working on a water meter. At the time plaintiff sustained the injury, she was suffering from various unrelated medical conditions, including arthritis and fibromyalgia. Defendant accepted plaintiff s injury as compensable, and plaintiff began receiving weekly worker s compensation benefits of $375.84 on 7 February 2002. Plaintiff evaluated by Dr. Kevin Speer ( Dr. Speer ). was initially Dr. Speer found no evidence of a rotator cuff tear, but did find that plaintiff suffered from acromioclavicular outlet. [m]arked joint, degenerative which narrows change the within the supraspinatus Dr. Speer recommended that plaintiff undergo shoulder surgery. After initially agreeing to the surgery, plaintiff changed her mind and elected not to undergo the procedure. As a result, Dr. Speer determined that plaintiff had reached maximum medical -3improvement and assigned a five percent disability rating to her right arm. from lifting more than twenty repetitive overhead activity. permanent partial Plaintiff was restricted pounds and from engaging in Plaintiff continued to receive temporary total disability compensation benefits from defendant. In April 2006, plaintiff came under the care of Dr. J. Th. Bloem ( Dr. Bloem ). undergo surgery. Dr. Bloem also recommended that plaintiff Plaintiff agreed and Dr. Bloem performed the procedure on 31 May 2007. Dr. Bloem later released plaintiff to light duty work, with restrictions of not lifting more than twenty-five pounds and refraining from any overhead work. On 1 July 2009, defendant offered plaintiff employment as a security booth attendant ( the security booth position or the position ). Defendant had previously employed a private security firm to staff this position. However, due to budgetary limitations, defendant decided to begin staffing the position with current employees. The position required plaintiff monitor and log vehicle ingress throughout the day. planned to pay plaintiff the same salary and to Defendant benefits she received at her pre-injury position. Plaintiff s pain management physician, Dr. Kirk Edward Harum ( Dr. Harum ), determined that plaintiff would be able to -4perform the work duties associated with the position. However, plaintiff s Smith ), psychiatrist, determined that aspects Dr. of James the Smith ( Dr. position would aggravate plaintiff s anxiety and claustrophobia and that, as a result, the position was inappropriate for plaintiff. Plaintiff failed to report to work at the position when requested by defendant. defendant filed a Form Consequently, 24 with the on 11 August Commission, 2009, seeking to suspend disability payments. On 16 September 2009, the Form 24 was temporary approved and all total disability payments to plaintiff were suspended as of 12 August 2009. The suspension of payments was to continue so long as plaintiff refuse to accept suitable employment. continued to Plaintiff s employment with defendant was subsequently terminated for reasons unrelated to her injury. On 4 March 2010, plaintiff filed a Form 33 request for hearing alleging approved benefits. March and that defendant s requesting that Form 24 was reinstatement of improvidently plaintiff s The hearing was conducted on 4 August 2010. 2011, Deputy Commissioner James C. Gillen On 25 ( Deputy Commissioner Gillen ) entered an opinion and award upholding the -5suspension of plaintiff s benefits until her refusal to accept the position ceased. Plaintiff appealed to the Full Commission. While the matter was pending on appeal, plaintiff attempted to accept the position, but defendant refused to re-offer her the job. As a result, on 17 June 2011, plaintiff filed a Motion to Compel Reinstatement of Benefits, ( motion to compel ) alleging that her refusal to accept the position had ceased. On 19 September 2011, the Full Commission filed an opinion and award affirming the suspension of plaintiff s disability benefits on the basis of plaintiff s employment. In unjustified addition, the refusal to Commission accept denied suitable plaintiff s motion to compel. Plaintiff appeals. II. Standard of Review Appellate review of an opinion and award of the Commission is limited to supports the findings support consideration Commission s the of whether findings Commission s of competent fact and conclusions evidence whether the law. This of court s duty goes no further than to determine whether the record contains any evidence tending to support the finding. Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008)(internal quotations and citations -6omitted). The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Anderson v. Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965). This Court reviews the Commission s conclusions of law de novo. Deseth v. LensCrafters, Inc., 160 N.C. App. 180, 184, 585 S.E.2d 264, 267 (2003). III. Suitability Plaintiff argues that the Commission erred in concluding that her refusal to accept the position offered by defendant was unjustified because the position was unsuitable as a matter of law. We disagree. Suitable employment is defined as any job that a claimant is capable of performing considering his age, education, physical limitations, vocational skills and experience. The burden is on the employer to show that an employee refused suitable employment. Once the employer makes this showing, the burden shifts to the employee to show that the refusal was justified. Munns v. Precision Franchising, Inc., 196 N.C. App. 315, 317-18, 674 S.E.2d 430, 433 (2009)(internal quotations and citations omitted). A. Physical Limitations Plaintiff first contends that the Commission failed to make sufficient findings regarding her mental health and urinary -7urgency conditions. However, the Commission found as fact that [t]he greater weight of the credible evidence establishes that the physical offered to Plaintiff s supported requirements Plaintiff physical by of by booth competent attendant Defendant-Employer restrictions. evidence, address plaintiff s conditions. B. the This is position are finding, within which broad sufficiently is to This argument is overruled. Availability of the Position Plaintiff next contends that the Commission s findings do not address the fact that the security booth position was only made available to light duty workers. Plaintiff argues that this demonstrates that the position only constituted unsuitable make work and that the Commission should have made findings specifically addressing this aspect of the security booth position. Our Supreme Court has stated that [t]he Workers Compensation Act does not permit [an employer] to avoid its duty to pay compensation by offering an injured employee employment which the employee under normally prevailing market conditions could find nowhere else . . . . Peoples v. Cone Mills Corp., 316 N.C. 426, 439, 342 S.E.2d 798, 806 (1986). [I]f the proffered employment is so modified because of the employee's -8limitations competitive that job it is market, not the ordinarily job is available make work in and the is not competitive. Jenkins v. Easco Aluminum, 165 N.C. App. 86, 95, 598 S.E.2d 252, 258 (2004)(quoting Peoples, 316 N.C. at 438, 342 S.E.2d at 806). In the instant case, the Commission s findings reflect that the security booth position should not be characterized as make work. The Commission specifically found that the position exists in the competitive job market in Raleigh[,] and that the requirements of the position w[ere] not modified when it was brought in-house[.] These findings, which were supported by competent evidence, adequately demonstrate that the security booth position was not impermissible make work. Accordingly, the fact that the position was only available to plaintiff s light duty employees determination and the was immaterial Commission was to not the Commission s required to specific findings regarding this aspect of the position. make This argument is overruled. C. Wages Plaintiff additionally argues that the security booth position was unsuitable as a matter of law because the position was not available at a comparable rate of pay in the competitive -9marketplace. [A]n employer cannot avoid its duty to pay compensation by offering the employee a position that could not be found elsewhere under normally prevailing market conditions. Moore v. Concrete Supply Co., 149 N.C. App. 381, 389-90, 561 S.E.2d 315, 320 (2002). The plain language of G.S. § 97-32 states that a post-injury job offered by an employer to the injured employee must be suitable to his capacity. In determining what is suitable, our courts consider similarity of the wages or salary of the pre-injury employment and the post-injury job offer. And Peoples requires that earning capacity be measured by whether other employers would hire the employee in the proffered job at a comparable wage level. Dixon v. City of Durham, 128 N.C. App. 501, 506, 495 S.E.2d 380, 384 (1998). In the instant case, the Commission found as fact that the position offered to plaintiff is readily available in Raleigh s competitive labor market at a salary similar to Plaintiff s preinjury wage. Plaintiff challenges this finding as unsupported by competent evidence. The relevant vocational testimony consultant Ann on this Neulicht, issue Ph.D. was provided ( Neulicht ). by She testified that the base pay of the security booth position was between eight and eleven dollars per hour, and that the ranged -10of the median salary was a few to five dollars above this rate. Since there was no evidence presented at the hearing which would indicate that plaintiff had any previous experience as an unarmed guard, plaintiff could expect to receive the entry-level salary of eight to eleven dollars per hour in the general labor market. Defendant intended to pay plaintiff her pre-injury wage to work in the position. The parties stipulated that this wage was $563.73 per week, which would constitute an hourly wage of $14.09. Consequently, Neulicht s testimony establishes that plaintiff would receive up to seventy-eight percent of the wages she would receive from defendant to perform the same job for another employer. A starting wage at seventy-eight percent of pre-injury wages may be reasonably and rationally found to be a comparable wage. Thus, the Commission s finding of fact was supported by Neulicht s testimony conclusion that employment. the and further security supported booth the Commission s position was suitable This argument is overruled. D. Plaintiff s Age, Education, Vocational Skills, and Experience Medical Limitations Finally, plaintiff argues that the Commission s opinion and award did not contain sufficient findings requirements of this Court s opinion in Munns. to satisfy the In Munns, the -11Court remanded the Commission s opinion and award on the issue of the physical suitability of the employment offered to the plaintiff because [t]he Opinion and Award contain[ed] no findings addressing employee s ability to perform the [offered employment] considering his age, education, limitations, vocational skills and experience. at 321, 674 S.E.2d at 435 physical 196 N.C. App. (internal quotations and citation omitted). In contrast to the opinion and award in Munns, which contained no findings on physical suitability, the Commission, in the instant requirements case, of the made a security specific booth plaintiff s physical restrictions. finding position that were the within While the Commission did not make detailed findings regarding the effect of plaintiff s age, education, physical limitations, vocational skills, experience on her ability to perform the position, nothing in Munns which suggests that separate and there is findings are required for each of these attributes. The testimony which supports the Commission s finding demonstrates that all of the evidence required by Munns before it was before the physical suitability. Commission when it made its finding on Neulicht was specifically asked if the -12security booth position was suitable for [plaintiff] from the perspective of her age, her education, her physical limitations, her vocational skills and her work experience, and she answered that it was. physical Neulicht stated that [i]t certainly is within restrictions and would require less education -- actually the same reasoning, math and language levels that her job as a meter--water meter installer required. This testimony fully supports a finding that the security booth position was physically suitable for plaintiff, and such a finding complies with the requirements of Munns. IV. This argument is overruled. Refusal to Accept Employment Plaintiff argues that the Commission erred in finding that her refusal unjustified. to accept the security booth position was We disagree. Under N.C. Gen. Stat. § 97-32, [i]f an injured employee refuses suitable employment, . . . the employee shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion Commission such refusal was justified. (2011). Plaintiff position was claims justified that due to her of the Industrial N.C. Gen. Stat. § 97-32 refusal her to medical accept the conditions. -13Plaintiff relies upon the testimony of her psychiatrist, Dr. Smith, in support of her claim. However, the findings of the Commission indicate that it considered and then disregarded Dr. Smith s opinion on the suitability of the position, which it was free to do as the finder of fact. See Hassell v. Onslow Cty. Bd. of Educ., 362 N.C. 299, 306, 661 S.E.2d 709, 715 (2008)( [A]s the sole judge of witness credibility and the weight to be given to witness testimony, the Commission may believe all or a part or none of any witness's omitted)). testimony. (internal quotations and citations The Commission found that Dr. Smith did not know the details of the security booth position and may have recommended that plaintiff requirements. testimony. included found These the position findings are if he supported knew by its Dr. true Smith s The remainder of the Commission s findings, which findings the position determination attempt attempt the that that to some be plaintiff s suitable, plaintiff security of booth had support other the unjustifiably position. This physicians Commission s refused to argument is overruled. V. Motion to Compel Reinstatement of Benefits -14Plaintiff argues that the Commission erred in failing to grant her motion to compel reinstatement of benefits. We remand this issue for further findings of fact. An employee who refuses suitable employment shall not be entitled to any compensation at any time during the continuance of such refusal[.] Id. In her motion to compel, plaintiff contended that she agreed to accept the security booth position after Deputy Commissioner Gillen s decision, while the case was on appeal to the Full Commission, but that defendant refused to allow plaintiff to accept the position since she was no longer a city employee. We are unable to determine whether the Commission properly denied plaintiff s motion to reinstate benefits because the Commission s opinion and award contains no findings regarding the contentions in plaintiff s motion. While the Commission repeatedly asserts in its opinion and award that plaintiff was not entitled to compensation until her refusal to accept suitable employment ceased, there are simply no findings which address whether plaintiff s willingness to attempt the security booth position was a legitimate cessation of her refusal. Defendant relies upon Alphin v. Tart L.P. Gas Co., 192 N.C. App. 576, 666 S.E.2d 160 (2008), to support its assertion that -15plaintiff s representation that she would accept the position was not credible. However, in Alphin, the Commission made a specific finding of fact that the plaintiff s willingness to cooperate was not credible before denying his reinstate benefits. Id. at 592, 666 S.E.2d at 170. motion to In contrast, the Commission, in the instant case, made no findings regarding the credibility Without such of plaintiff s findings, the willingness Commission to could not cooperate. determine whether or not plaintiff s refusal to accept the security booth position had ceased. Therefore, we must remand the case for further findings of fact which specifically address the claims raised in plaintiff s motion to compel. VI. The Commission s Conclusion findings of fact are supported by competent evidence and fully support its determination that the security and that plaintiff unjustifiably refused to attempt that position. That portion However, booth of the the position was Commission s Commission suitable opinion failed to and make employment award any is affirmed. findings address the claims raised in plaintiff s motion to compel. which As a result, we remand the case for additional findings of fact on that issue. -16Affirmed in part and remanded in part. Judges STEELMAN and BEASLEY concur. Report per Rule 30(e).
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