Plott v. Bojangle's Restaurants, Inc.

TYSON, Judge, dissenting.

The majority's opinion "reverse[s] and remand[s]" this case to the North Carolina Industrial Commission (the "Commission") for further findings of fact. Where additional findings are required, the proper mandate from this Court is to simply remand for further findings. "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). Under this Court's standard of review, we do not reweigh credibility determinations of the evidence before the Commission. Harrell v. J.P. Stevens & Co., 45 N.C.App. 197, 205, 262 S.E.2d 830, 835, disc. rev. denied, 300 N.C. 196, 269 S.E.2d 623 (1980). I vote to affirm the Commission's opinion and award and respectfully dissent.

I. Standard of Review

"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) (citations omitted). The Commission is not required to make specific findings of fact on every issue raised by the evidence, only findings of crucial facts upon which the right to compensation depends are required. Gaines v. L.D. Swain & Son, Inc., 33 N.C.App. 575, 579, 235 S.E.2d 856, 859 (1977). "The Commission is not required to make a finding as to each detail of the evidence or as to every inference or shade of meaning to be drawn therefrom." Guest v. Iron & Metal Co., 241 N.C. 448, 451, 85 S.E.2d 596, 599 (1955).

II. Background

On 2 December 2002, Dr. Christopher Bayshore, an orthopedic specialist, released plaintiff to return to light duty work with restrictions. On 10 December 2002, Dr. William Brown ("Dr. Brown"), a neurosurgeon, treated plaintiff, prescribed epidural steroid injections, and released plaintiff from work until treatment was completed. Dr. Brown released plaintiff to work with restrictions on 24 February 2003. Dr. Brown testified that he believed that he could work "if enough restrictions [were] applied," and recommended plaintiff "[f]ind a different type of job."

Plaintiff admitted he had neither attempted to return to work nor sought any employment since November 2002 and blamed his lack of efforts on pain and limitations. Plaintiff achieved a high school diploma and has taken courses in machine shop. Plaintiff has experience as a forklift and machine operator. Prior to employment with Bojangle's in 1999, plaintiff gained experience in food service and restaurant management. Plaintiff worked for K-Mart in deli/food service, at a pizza restaurant, and managed a McDonald's Restaurant.

In 1999, plaintiff obtained employment with defendant Bojangle's Restaurants, Inc. as an Assistant Unit Manager. His job duties included cooking, cleaning, overseeing employees, and maintaining positive customer service relations. Plaintiff testified that at the time he accepted the position with Bojangle's he had incurred a partial disability from a prior work related injury. Plaintiff testified he felt comfortable accepting employment with Bojangle's with restrictions and *576was able to perform his job for three and one-half years under such restrictions.

The Commission made determinations on plaintiff's credibility and entered findings of fact that he "had not been forthcoming regarding defendant-employer's willingness to accommodate plaintiff's restrictions." The Commission also entered findings that "plaintiff misinformed Dr. Morgan, mischaracterizing the incident of 1 November 2002." The Commission weighed the credibility of the evidence and entered findings of fact that Bojangle's offered plaintiff a position within his restrictions, which he refused to accept or attempt, and that subsequently failed to seek any employment.

III. Disability

"`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.'" Saums v. Raleigh Community Hospital, 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997) (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986)). "[T]he burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment." Shaw v. United Parcel Service, 116 N.C.App. 598, 601, 449 S.E.2d 50, 52 (1994), aff'd per curiam, 342 N.C. 189, 463 S.E.2d 78 (1995). A plaintiff may 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 an employee presents substantial evidence he or she is incapable of earning wages, the employer must then come forward with evidence 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." Barber v. Going West Transp. Inc., 134 N.C.App. 428, 435, 517 S.E.2d 914, 920 (1999) (citing Kennedy v. Duke Univ. Med. Center, 101 N.C.App. 24, 33, 398 S.E.2d 677, 682 (1990)).

The Commission entered findings of fact that plaintiff was partially disabled. The Commission's finding of fact numbered 9 states, "Dr. Brown testified that he would rate plaintiff with a 10% permanent partial disability to his back." Based upon this finding, the Commission concluded plaintiff was disabled and entered conclusion of law numbered 2 that "plaintiff was temporarily totally disabled and entitled to receive temporary total disability compensation" until his refusal to return to work.

IV. Refusal to Work

Plaintiff presented no evidence that he attempted to return to work or seek other gainful employment. Defendants argue pursuant to N.C. Gen.Stat. § 97-32 that the Commission correctly found plaintiff was not entitled to further benefits beyond the Commission's award because "[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." Defendants presented competent evidence to show that "suitable jobs [were] available, [and] also that the plaintiff [was] capable of getting one, taking into account both physical and vocational limitations." Kennedy, 101 N.C.App. at 33, 398 S.E.2d at 682. The Commission concluded:

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 *577ongoing weekly disability benefits. N.C.G.S. 97-32.

Competent and uncontradicted evidence in the record supports the Commission's conclusion of law numbered 4. The Commission did not err when it entered findings of fact and conclusions of law that plaintiff was released to return to work on 24 February 2003 and he was capable of, but refused, proffered work. The Commission did not shift the burden of proof to defendants after it had found plaintiff failed to prove he was totally disabled after 24 February 2003.

V. Conclusion

The Commission's findings of fact are supported by competent and uncontradicted evidence in the record and are not insufficient as a matter of law. The Commission's findings of fact support its conclusions of law. I vote to affirm the Commission's opinion and award. I respectfully dissent.