IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-569-2
Filed: 20 February 2018
North Carolina Industrial Commission, I.C. No. W55950
DAWSON F. NECKLES, Employee, Plaintiff
v.
HARRIS TEETER, Employer, and TRAVELERS, Carrier, Defendants
Appeal by plaintiff from opinion and award entered 27 January 2016 by the
Full Commission of the North Carolina Industrial Commission. Originally heard in
the Court of Appeals 1 November 2016, with opinion issued 30 December 2016. On 8
June 2017, the Supreme Court allowed defendants’ petition for discretionary review
for the limited purpose of remanding to this Court for reconsideration in light of
Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838 (2017), superseded on other
grounds by 2017 N.C. Sess. Laws 2017-124.
Campbell & Associates, by Bradley H. Smith, for plaintiff-appellant.
Golding, Holden & Pope, LLP, by C. Preston Armstrong IV, for defendant-
appellees.
CALABRIA, Judge.
Dawson F. Neckles (“plaintiff”) timely appealed from an opinion and award of
the North Carolina Industrial Commission (“the Commission”) determining that he
was no longer entitled to temporary total disability benefits. On 30 December 2016,
this Court filed an unpublished opinion reversing the Commission’s opinion and
NECKLES V. HARRIS TEETER
Opinion of the Court
award. See Neckles v. Harris Teeter, __ N.C. App. __, 795 S.E.2d 289, 2016 WL
7984225 (2016) (unpublished). Harris Teeter and its insurance carrier, Travelers
Indemnity, (collectively, “defendants”) subsequently filed a petition for discretionary
review (“PDR”) with the North Carolina Supreme Court. On 8 June 2017, the
Supreme Court allowed defendants’ PDR for the limited purpose of remanding the
case to this Court for reconsideration in light of the Supreme Court’s decision in
Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838 (2017), superseded on other
grounds by 2017 N.C. Sess. Laws 2017-124. Upon reconsideration, we reverse the
Commission’s opinion and award and remand for additional findings.
I. Background
Plaintiff was 68 years old at the time of the Commission’s hearing. In 1989,
plaintiff moved to the United States from Grenada. Since his arrival, plaintiff has
worked for various employers as a meat cutter, and he began working in that role for
Harris Teeter in 2007. According to the job description, a meat cutter is required to
lift and move up to 100 pounds on a regular basis and must be able to reach from 6
to 72 inches. The position also occasionally requires climbing, balancing, stooping,
kneeling, or crouching.
On 30 June 2009, plaintiff injured his right hip, lower back, and right
extremities while attempting to move a box of meat to the top of a stack. An MRI of
plaintiff’s lower back revealed a pars fracture or spondylolysis at L5, multilevel disc
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Opinion of the Court
bulging, and spinal and foraminal stenosis. Defendants filed a Form 60 admitting
that plaintiff had suffered a compensable injury and initiated payments of temporary
total disability.
On 26 January 2010, plaintiff participated in a functional capacity evaluation,
which determined that he was unable to return to his job as a meat cutter but was
capable of performing functions in the “light physical demand” category. On 8
February 2010, plaintiff’s doctor found that he had obtained maximum medical
improvement. However, plaintiff’ continued to experience pain and weakness in his
lower back and right leg. Over the next few years, he required further medical
treatment and intermittent use of a cane in order to walk.
At defendants’ request, on 15 September 2011, plaintiff met with John
Kobelsky (“Mr. Kobelsky”), a vocational rehabilitation specialist, to assess plaintiff’s
“current vocational potential.” Mr. Kobelsky determined that it would be “difficult”
to place plaintiff in the open job market on a full-time basis, due to factors including
his work history, limited transferrable skills, age, and lack of computer knowledge.
As a result, Mr. Kobelsky decided not to perform additional testing or complete a
transferrable skills analysis for plaintiff.
On 25 June 2014, defendants filed a Form 33 alleging that “[p]laintiff is no
longer disabled” and requesting a hearing. Plaintiff responded that he remained
disabled, and he sought an order compelling defendants to pay for all related medical
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Opinion of the Court
compensation. Following a hearing, on 16 July 2015, Deputy Commissioner Bradley
W. Houser entered an opinion and award determining that plaintiff was entitled to
continued payment of temporary total disability benefits and all related medical
expenses incurred as a result of his 30 June 2009 workplace injury. The deputy
commissioner found that “[b]ased upon the preponderance of the evidence in view of
the entire record, . . . a job search by plaintiff . . . would be futile based on his age,
education, work experience, work restrictions for his compensable back injury,
unrelated health conditions, and difficulty communicating.” After defendants
appealed, on 27 January 2016, the Full Commission entered an opinion and award
reversing, in part, the deputy commissioner’s decision. The Commission awarded
plaintiff continued medical compensation for his injury. However, the Commission
concluded that plaintiff was not entitled to temporary total disability benefits because
he “failed to meet his burden of showing that it would be futile for him to look for
work.” Plaintiff timely appealed to this Court.
In an unpublished opinion filed on 30 December 2016, we reversed the
Commission’s opinion and award. Relying heavily on our Court’s decision in Wilkes
v. City of Greenville, 243 N.C. App. 491, 777 S.E.2d 282 (2015), we held that plaintiff
had met his burden of proving disability under the so-called “futility method” set forth
in Russell v. Lowe’s Prod. Distrib’n, 108 N.C. App. 762, 425 S.E.2d 454 (1993). See
Neckles, __ N.C. App. at __, 2016 WL 7984225 at *5 (concluding that “[p]laintiff
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Opinion of the Court
produced ample evidence that seeking employment would be a ‘meaningless exercise’
because of his age; education level; communication barriers; limited vocational
training and experience; chronic health conditions; and compensable workplace
injury”). Defendants timely appealed by filing a PDR with the North Carolina
Supreme Court. On 8 June 2017, the Court allowed defendants’ PDR for the limited
purpose of remanding to this Court for reconsideration of our holding in light of the
Supreme Court’s decision in Wilkes v. City of Greenville, 369 N.C. 730, 799 S.E.2d 838
(2017), superseded on other grounds by 2017 N.C. Sess. Laws 2017-124.
II. Wilkes v. City of Greenville
In Wilkes, the Supreme Court modified and affirmed our Court’s decision on
the issue of disability. Relying on Russell, our Court held that although the Wilkes
plaintiff was capable of some work, he had nevertheless “demonstrated the futility of
engaging in a job search” due to preexisting conditions including his age, “intellectual
limitations,” and limited work experience. 243 N.C. App. at 503, 777 S.E.2d at 291.
The Supreme Court, however, emphasized that it “has not adopted Russell” and
cautioned that the case was inapposite to Wilkes, since “the issue in Russell was
‘whether an injured employee seeking an award of total disability . . . who is
unemployed, medically able to work, and possesses no preexisting limitations which
would render him unemployable,’ presented sufficient evidence that he was unable to
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find work.” Wilkes, 369 N.C. at 745, 799 S.E.2d at 849 (quoting Russell, 108 N.C.
App. at 764-65, 425 S.E.2d at 456-57).
The Supreme Court reiterated that “in determining loss of wage-earning
capacity, the Commission must take into account age, education, and prior work
experience as well as other preexisting and coexisting conditions.” Id. Once the
plaintiff meets his burden of establishing disability, the burden shifts to the
defendant “to show not only that suitable jobs are available, but also that the plaintiff
is capable of getting one, taking into account both physical and vocational
limitations.” Id. (citation and quotation marks omitted). However, if the plaintiff
“shows total incapacity for work, taking into account his work-related conditions
combined with the other factors noted above, he is not required to also show that a
job search would be futile.” Id. at 746, 799 S.E.2d at 849.
Despite awarding the Wilkes plaintiff medical compensation, “the Commission
made no related findings on how [his] compensable tinnitus and any related
symptoms may have affected his ability to engage in wage-earning activities.” Id. at
747-48, 799 S.E.2d at 850. Accordingly, the Supreme Court remanded the case to the
Commission with instructions “to take additional evidence if necessary and to make
specific findings addressing plaintiff’s wage-earning capacity, considering plaintiff’s
compensable tinnitus in the context of all the preexisting and coexisting conditions
bearing upon his wage-earning capacity.” Id. at 748, 799 S.E.2d at 850.
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Opinion of the Court
III. Reconsideration of Neckles v. Harris Teeter
Upon reconsideration of our original opinion, we conclude that the Commission
failed to make necessary findings regarding the effect of plaintiff’s compensable
injury on his ability to earn wages. The Commission awarded plaintiff continued
medical compensation for his 30 June 2009 injury, finding in relevant part:
27. Based on the preponderance of the evidence in view of
the entire record, including the testimony of Dr.
VanDerNoord, on 30 June 2009, plaintiff sustained an
injury by accident arising out of and in the course of his
employment with defendant-employer resulting in a
symptomatic pars fracture at L5, as well as the
aggravation of pre-existing, asymptomatic degenerative
disc disease of the lumbar spine. Although plaintiff
appears to have undergone an MRI of his spine in 2007,
plaintiff did not recall having undergone the MRI, and
there is no evidence indicating why plaintiff underwent the
2007 MRI or what if any symptoms he experienced in his
low back or lower extremities prior to the incident that is
the subject of this claim. Furthermore, plaintiff was able
to work in a physically demanding job with defendant-
employer for approximately two years before the 30 June
2009 incident.
28. The treatment plaintiff has received to date has been
reasonably necessary to effect a cure and provide relief, and
lessen plaintiff’s period of disability. Furthermore,
plaintiff is entitled to further medical treatment as is
reasonably necessary [to] effect a cure, provide relief from
his 30 June 2009 work-related injury.
However, the Commission determined that plaintiff was not entitled to
temporary total disability benefits after 25 June 2014, the date defendants filed their
Form 33 Request that Claim be Assigned for Hearing, because plaintiff failed to prove
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Opinion of the Court
the futility of seeking employment. The Commission concluded as a matter of law
that:
10. In the instant case, plaintiff has failed to meet his
burden of showing that he continues to be disabled as a
result of his 30 June 2009 injury by accident. Neither
orthopedic expert indicated that plaintiff was medically
disabled from all work since he was determined by Dr.
VanDerNoord to have reached [maximum medical
improvement] on 8 February 2010. Plaintiff has not
worked for any employer since 30 June 2009, and provided
no evidence that he has sought new employment.
Furthermore, vocational rehabilitation professional, Mr.
Kobelsky, testified merely that it would be “difficult” to
place plaintiff in a job and acknowledged that the 30 pound
lifting restriction assigned by Dr. Broom would open up
numerous jobs to plaintiff. . . . [A] plaintiff is not required
to present medical evidence or expert vocational testimony
in order to meet his burden of proving that it would be
futile to seek employment. In the instant case, there is
expert vocational testimony that it would be “difficult,” not
“futile,” for plaintiff to seek employment. Accordingly, the
Full Commission concludes that plaintiff has failed to meet
his burden of showing that it would be futile for him to look
for work.
(internal citations omitted).
In our original opinion, we concluded that the Commission had erroneously
limited its determination of futility to the portion of Mr. Kobelsky’s testimony that it
would be “difficult,” rather than “futile,” for plaintiff to find a job. Neckles, __ N.C.
App. at __, 2016 WL 7984225 at *4. However, in Wilkes, the Supreme Court explained
that if the plaintiff “shows total incapacity for work, . . . he is not required to also show
that a job search would be futile.” 369 N.C. at 746, 799 S.E.2d at 849 (emphasis
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added). Rather, once the plaintiff establishes disability, the burden shifts to the
defendant “to show not only that suitable jobs are available, but also that the plaintiff
is capable of getting one, taking into account both physical and vocational
limitations.” Id. at 745, 799 S.E.2d at 849.
Plaintiff has numerous physical and vocational limitations, including “his
work history, limited transferrable skills, age, . . . lack of computer knowledge[,]” and
“chronic health problems which include angina, poorly controlled diabetes, and
gout[.]” As we observed in our original opinion, these limitations are documented in
the Commission’s findings of fact but not reflected in its ultimate determination of
disability. Neckles, __ N.C. App. at __, 2016 WL 7984225 at *4. However, plaintiff
also experiences additional communication barriers not addressed by the
Commission’s findings. At the hearing, counsel had to continuously repeat questions
and move closer to accommodate plaintiff’s hearing difficulties, and the transcript
includes frequent notations of “inaudible” or “unintelligible” throughout plaintiff’s
testimony, “[d]ue to the witness’ heavy accent.” Moreover, even assuming, as stated
in Conclusion of Law #10, that the 30-pound lifting restriction ordered by plaintiff’s
doctors “would open up numerous jobs” to him, the Commission nevertheless failed
to make any findings regarding plaintiff’s ability to obtain one. See Peoples v. Cone
Mills Corp., 316 N.C. 426, 441, 342 S.E.2d 798, 808 (1986) (explaining that “[i]f
preexisting conditions such as the employee’s age, education and work experience are
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Opinion of the Court
such that an injury causes the employee a greater degree of incapacity for work than
the same injury would cause some other person, the employee must be compensated
for the actual incapacity he or she suffers, and not for the degree of disability which
would be suffered by someone younger or who possesses superior education or work
experience”).
“[T]he Commission must make specific findings that address the crucial
questions of fact upon which plaintiff’s right to compensation depends.” Wilkes, 369
N.C. at 746, 799 S.E.2d at 849 (citation and quotation marks omitted). “Yet, having
found credible evidence of plaintiff’s [lower back injury], the Commission made no
related findings on how plaintiff’s compensable [lower back injury] and any related
symptoms may have affected his ability to engage in wage-earning activities.” Id. at
747-48, 799 S.E.2d at 850. Accordingly, we reverse the opinion and award and
remand “to the Commission to take additional evidence if necessary and to make
specific findings addressing plaintiff’s wage-earning capacity, considering plaintiff’s
compensable [injury] in the context of all the preexisting and coexisting conditions
bearing upon his wage-earning capacity.” Id. at 748, 799 S.E.2d at 850.
REVERSED AND REMANDED.
Judges BRYANT and DILLON concur.
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