Richards v. Harris Teeter

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-595

No. COA21-804

Filed 6 September 2022

North Carolina Industrial Commission, I.C. No. 19-034789

CLARENCE RICHARDS, Employee, Plaintiff,

v.

HARRIS TEETER, INC., Employer, SELF-INSURED (SEDGWICK CLAIMS
MANAGEMENT SERVICES, Third-Party Administrator), Defendants.

Appeal by defendants from opinion and award entered 26 August 2021 by the

North Carolina Industrial Commission. Heard in the Court of Appeals 10 August

2022.

Hunter & Everage, by S. Camille Payton, for plaintiff-appellee.

Pope Aylward Sweeney & Santaniello, LLP, by Alexander J. Elmes and
Edward A. Sweeney, for defendants-appellants.

ZACHARY, Judge.

¶1 Defendants Harris Teeter, Inc., (“Defendant”) and Sedgwick Claims

Management Services (collectively, “Defendants”) appeal from an Opinion and Award

entered by the North Carolina Industrial Commission in which the Full Commission

concluded that the Seagraves test did not apply in this case. After careful review, we

affirm.

I. Background

¶2 Plaintiff Clarence Richards began working as a truck driver for Defendant in
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2016. On 3 August 2019, Plaintiff was injured in a single-vehicle accident on

Interstate 85 when his truck “ran off the road returning from Virginia.” Vance County

EMS transported Plaintiff to Maria Parham Health’s emergency department. The

EMS record reports that Plaintiff “said he didn’t know he was listening to the radio

and then the accident . . . says he may have just drifted thinking about something.”

The hospital record states that Plaintiff “lost control of his vehicle this morning just

after taking a sip of Gatorade and wound up wrecking into a grassy field.”

¶3 Plaintiff’s physician wrote Plaintiff out of work while he received medical

treatment. On 13 August 2019, Plaintiff filed a Form 18 Notice of Accident to

Employer and Claim of Employee, Representative, or Dependent with the Industrial

Commission. On 30 August 2019, Defendants filed a Form 63 Notice of Payment of

Compensation Without Prejudice, accepting Plaintiff’s claim for workers’

compensation benefits for a “low back” injury as a result of the 3 August accident.

Defendants began paying indemnity benefits and medical compensation to Plaintiff,

and did not contest the compensability of Plaintiff’s claim within the statutory

deadline, thereby accepting the compensability of his “low back” injury. See N.C. Gen.

Stat. § 97-18(d) (2021).

¶4 Shortly after the accident, Defendant terminated Plaintiff’s employment,

effective 29 August 2019. Brian Barnhardt, a workers’ compensation claims manager

for Defendant, testified before the Deputy Commissioner that Defendant’s “review
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committee” determined that Plaintiff’s “accident was preventable.” Defendant’s

personnel records indicate that Plaintiff was terminated for a “Violation of

Established Safety Procedures”—namely, that Defendant’s camera in the cab of the

truck showed that Plaintiff closed his eyes for approximately seven to ten seconds,

which led to the single-vehicle accident—and that therefore Plaintiff was “Not

Eligible for Rehire.”

¶5 Barnhardt also testified regarding Defendant’s “mandatory return-to-work

program for a workers’ comp injury[,]” and the availability of “numerous temporary

positions an associate can do if they have restrictions.” However, Barnhart testified

that because Plaintiff was “not eligible for rehire[,]” Defendant would not offer

Plaintiff any job, including positions “that [Defendant] claim[ed] [Plaintiff] could do.”

Defendant also declined to provide “any vocational rehabilitative services to assist

Plaintiff in locating suitable employment.”

¶6 Meanwhile, Plaintiff was released to return to “sedentary work only” on 15

August 2019, but he was prohibited from driving a truck professionally “due to

functional limitations.” From 23 September 2019 through 3 February 2020, Plaintiff

received treatment for his lower back and right knee from Dr. Ronald Gioffre, a board-

certified orthopedic surgeon. Plaintiff also attended physical therapy, which Dr.

Gioffre reported “seem[ed] to be helping greatly[,]” although Dr. Gioffre noted that

Plaintiff “still cannot stand more than thirty minutes and sit about 1 hour, before he
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starts to have pain.”

¶7 Later, in his deposition, Dr. Gioffre elaborated on his decision regarding

Plaintiff’s work restrictions:

So I basically didn’t feel in the few times that I saw him
that even if he had a job that I would have let him go back
to work with his back and hip, because I couldn’t see how
he could possibly get up – step up into one of those trucks
with the hip the way it was, and his back was an issue.

....

I know what he had to do as a truck driver, and I said, No,
you can’t go back to work. I didn’t know what else they
wanted me to do with restrictions. If they would have had
a sedentary type job, I’d have sent him back. There was no
reason he couldn’t do sedentary work.

When presented with Defendant’s job descriptions for two positions—Cashier and

Self-Checkout Cashier (also referred to as a “U-Scan Cashier”)—Dr. Gioffre testified

that he thought Plaintiff would “have a hard time all day doing [the Cashier] work

eight hours a day”; nonetheless, it was his opinion that Plaintiff would be able to

perform the work of a U-Scan Cashier if he were permitted to sit periodically.

¶8 After being released from Dr. Gioffre’s care on 3 February 2020, Plaintiff

sought employment through various job search websites, across various industries.

Plaintiff testified before the Deputy Commissioner that he looked for jobs that do not

require constant sitting or standing, consistent with his restrictions, but that he had

not received any replies from prospective employers. With regard to his resume,
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Plaintiff testified that he was 64 years old at the time of the hearing before the Deputy

Commissioner, with three years of college education. He was employed for 12 years

as a corrections officer, and for 27 years as a truck driver; he has never worked in an

office and is “computer illiterate.”

¶9 On 30 April 2020, Plaintiff’s counsel filed a Form 33 Request that Claim be

Assigned for Hearing, alleging that “Defendants have failed and refused to pay past

due [temporary total disability] benefit underpayment.” On 15 June 2020,

Defendants filed a Form 33R Response to Request that Claim be Assigned for

Hearing, replying, inter alia, that “Plaintiff has received all benefits to which he is

entitled.” The matter came on for hearing before the Deputy Commissioner on 8 July

2020, and by Opinion and Award entered 12 January 2021, the Deputy Commissioner

ordered that Defendants pay temporary total disability “until Plaintiff returns to

work, until further order of the Industrial Commission, or until compensation is

otherwise legally terminated.”

¶ 10 Defendants timely filed notice of appeal to the Full Commission of the North

Carolina Industrial Commission, which heard this matter on 9 June 2021. By Opinion

and Award entered 26 August 2021, the Full Commission awarded Plaintiff the same

payment of temporary total disability and attorneys’ fees, and added that “[s]ubject

to the provisions of N.C. Gen. Stat. § 97-25.1, Defendant shall pay medical expenses

incurred or to be incurred as a result of Plaintiff's admittedly compensable injury as
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may reasonably be required to effect a cure, provide relief, or lessen the period of

disability.”

¶ 11 Defendants timely filed notice of appeal to this Court.

II. Discussion

¶ 12 On appeal, Defendants first argue that the Full Commission erred by failing

to find that Plaintiff constructively refused suitable employment, and by failing to

apply the test for constructive refusal of suitable employment first articulated by this

Court in Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 399

(1996), and subsequently adopted by our Supreme Court in McRae v. Toastmaster,

Inc., 358 N.C. 488, 597 S.E.2d 695 (2004). Assuming application of the Seagraves test,

Defendants also argue that the Full Commission erred by failing to find that

Defendants had not shown that Plaintiff’s termination was unrelated to his

compensable injury, and by concluding that Plaintiff remains disabled or that he

conducted a reasonable job search.

A. Standard of Review

¶ 13 “Appellate review of an award from the Industrial Commission is generally

limited to two issues: (i) whether the findings of fact are supported by competent

evidence, and (ii) whether the conclusions of law are justified by the findings of fact.”

Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006), reh’g

denied, 361 N.C. 227, 641 S.E.2d 801 (2007). Because the Commission “is the sole
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judge of the weight and credibility of the evidence,” its “findings of fact are conclusive

on appeal if supported by competent evidence[.]” Blackwell v. N.C. Dep’t of Pub.

Instruction, 2022-NCCOA-123, ¶ 5 (citations omitted).

¶ 14 “Findings not supported by competent evidence are not conclusive and will be

set aside on appeal. But findings supported by competent evidence are conclusive,

even when there is evidence to support contrary findings.” Johnson v. Covil Corp.,

212 N.C. App. 407, 408–09, 711 S.E.2d 500, 502 (2011) (citations and internal

quotation marks omitted). “Unchallenged findings of fact are presumed to be

supported by competent evidence and are binding on appeal.” Fields v. H&E Equip.

Servs., LLC, 240 N.C. App. 483, 485–86, 771 S.E.2d 791, 793–94 (2015) (citation

omitted).

¶ 15 The Commission’s conclusions of law are reviewed de novo. Blackwell, 2022-

NCCOA-123, ¶ 5. Under de novo review, this Court “considers the matter anew and

freely substitutes its own judgment for that of the lower tribunal.” Fields, 240 N.C.

App. at 486, 771 S.E.2d at 793–94 (citation omitted).

B. Constructive Refusal of Suitable Employment

¶ 16 The parties stipulated that “Plaintiff was injured during the scope of his

employment” with Defendant. The initial compensability of Plaintiff’s lower back

injury resulting from the accident is also undisputed. Rather, this appeal concerns

whether Plaintiff constructively refused suitable employment where Defendant
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deemed him ineligible for participation in Defendant’s “return-to-work” program.

¶ 17 Before the Full Commission, Defendants argued that “Plaintiff constructively

refused suitable employment because he was terminated for cause, and that but for

the termination for cause, Plaintiff would have remained employed at his preinjury

wages because Defendant would have accommodated Plaintiff’s post-injury

restrictions.” On appeal, Defendants argue that the Full Commission erred by failing

to extend the Seagraves test for constructive refusal of suitable employment. We

disagree.

¶ 18 Under our Workers’ Compensation Act, “[i]f an injured employee refuses

suitable employment as defined by G.S. 97-2(22), the employee 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.” N.C. Gen. Stat. § 97-

32. “In Seagraves, the Court of Appeals examined the question of whether an

employee can be deemed to have refused suitable employment, thereby precluding

injury-related benefits, if she is terminated for misconduct that is unrelated to her

workplace injuries.” McRae, 358 N.C. at 493, 597 S.E.2d at 698.

In lieu of an employee’s termination for misconduct serving
as an automatic bar to benefits, the court in Seagraves
adopted a test that measures whether the employee’s loss
of earning capacity is attributable to the wrongful act that
caused the employee’s termination from employment, in
which case benefits would be barred, or whether such loss
of earning capacity is due to the employee’s work-related
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disability, in which case the employee would be entitled to
benefits intended for such disability.

Id. at 493, 597 S.E.2d at 699.

¶ 19 The McRae Court adopted the Seagraves test: “to bar payment of benefits, an

employer must demonstrate initially that: (1) the employee was terminated for

misconduct; (2) the same misconduct would have resulted in the termination of a

nondisabled employee; and (3) the termination was unrelated to the employee’s

compensable injury.” Id. “An employer’s successful demonstration of such evidence is

deemed to constitute a constructive refusal by the employee to perform suitable work

. . . .” Id. at 493, 597 S.E.2d at 699 (citation and internal quotation marks omitted).

The employee’s constructive refusal “would bar benefits for lost earnings, unless the

employee is then able to show that his or her inability to find or hold other

employment at a wage comparable to that earned prior to the injury is due to the

work-related disability.” Id. at 493–94, 597 S.E.2d at 699 (citation and internal

quotation marks omitted).

¶ 20 Further, our Supreme Court reiterated that, under the Seagraves test, the

employer bears the burden “to show, by the greater weight of the evidence, that a

plaintiff’s termination was unrelated to his or her work-related injuries; the burden

is not on a plaintiff to show that the termination was so related.” Id. at 499, 597

S.E.2d at 702.
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¶ 21 Importantly for the present case, the Full Commission noted in its Opinion and

Award that the injured employee in Seagraves “had been provided light-duty,

rehabilitative employment after contracting a compensable occupational disease[,]”

see Seagraves, 123 N.C. App. at 229, 472 S.E.2d at 398, while the injured employee

in McRae “was terminated for inadvertent errors she committed while performing a

job to which she was reassigned subsequent to undergoing surgery for a compensable

occupational disease[,]” see McRae, 358 N.C. at 491, 597 S.E.2d at 697–98. That the

injured employees in Seagraves and McRae were terminated from rehabilitative

employment was a significant factor to the Full Commission, which observed that

Plaintiff “was not terminated from rehabilitative employment for misconduct

unrelated to his admittedly compensable injury. Rather, Plaintiff in this case was

terminated from his regular job for his role in the very accident that caused his

admittedly compensable injury.” Accordingly, the Full Commission concluded that

“[t]he operative facts in the case before us are substantially different than those in

Seagraves and McRae” and therefore, “[g]iven these fundamental factual differences,

the Seagraves test is not applicable in this case.”

¶ 22 Defendants argue that the Full Commission erred by distinguishing the case

at bar from Seagraves and McRae on the basis of those injured employees’

termination from rehabilitative employment, asserting that “[i]t is unclear why the

Commission believes the temporal factor is required in the analysis of earning
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capacity and disability.” Instead, Defendants contend that “[t]he fact that . . .

Plaintiff’s misconduct resulted in his termination for cause deprived . . . Defendant

the opportunity to return him to suitable employment[.]” According to Defendant, it

“has a job for . . . Plaintiff but for the fact he was terminated for unsafe driving when

he fell asleep and drove his truck off the road[,]” an undisputed violation of

Defendant’s established safety protocols. Because it “has a job approved by the

authorized treating physician which would have been available to . . . Plaintiff, but

for his termination, the fact that termination did not occur during rehabilitative

employment appears irrelevant.” We cannot agree.

¶ 23 In seeking to apply the Seagraves test to cases such as this—in which the

injured employee was terminated for causing the accident that resulted in his injury

and so, pursuant to the employer’s policies, has not and avowedly will not be offered

suitable employment—Defendants essentially ask this Court to impose a for-cause

bar to recovery of workers’ compensation benefits when the employee is unable to find

suitable employment elsewhere. Defendants’ position is fundamentally incompatible

with the well-established principles and purposes of the workers’ compensation

system, which deliberately eliminates negligence from its calculus in all but certain

narrowly defined instances.

¶ 24 The Workers’ Compensation Act has been carefully calibrated to balance the

needs of compensably injured employees with the potential risks posed to employers.
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“The social policy behind the Workers’ Compensation Act is twofold. First, the Act

provides employees swift and certain compensation for the loss of earning capacity

from accident or occupational disease arising in the course of employment. Second,

the Act insures limited liability for employers.” Frost v. Salter Path Fire & Rescue,

361 N.C. 181, 184, 639 S.E.2d 429, 432 (2007) (citation omitted).

¶ 25 As part of this mutually beneficial exchange, our Supreme Court has long

recognized that under the Workers’ Compensation Act “not even gross negligence is

a defense to a compensation claim. Only intoxication or injury intentionally inflicted

will defeat a claim.” Hartley v. N.C. Prison Dep’t, 258 N.C. 287, 289, 128 S.E.2d 598,

600 (1962). Since Hartley was decided, only the unauthorized use of controlled

substances has been added to this limited list of exceptions. See N.C. Gen. Stat. § 97-

12 (providing that an employee forfeits compensation in the event of “intoxication,”

“being under the influence of any controlled substance” not properly prescribed, or

“willful intention to injure or kill himself or another”). Therefore, an “employee’s

violation of a safety rule does not of itself constitute a bar to recovery of compensation

where it may be determined that his injury arose in the course of the employment.”

Spratt v. Duke Power Co., 65 N.C. App. 457, 466, 310 S.E.2d 38, 44 (1983).

¶ 26 In the instant case, Defendants clarify that they do not argue on appeal that

fault has any place in the compensability determination, and they do not dispute that

Plaintiff’s injury was compensable. Nevertheless, Defendants argue that fault does
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have a place—or at least, it should—in the workers’ compensation system, when it

comes to determining when an employer may subsequently terminate workers’

compensation benefits.

¶ 27 Our Supreme Court considered similar concerns when it first adopted the

Seagraves test in McRae: “We . . . recognize that the current benefit scheme faces the

potential for abuse by employees. If injury-related benefits continued without regard

to an employee’s misconduct, injured employees conceivably could commit misconduct

in order to be terminated without suffering the appropriate financial consequences.”

358 N.C. at 495, 597 S.E.2d at 700. Yet the McRae Court contrasted that concern with

its opposite: “[A]ny rule that would allow employers to evade benefit payments simply

because the recipient-employee was terminated for misconduct could be open to

abuse. Such a rule could give employers an incentive to find circumstances that would

constitute misconduct by employees who were previously injured on the job.” Id. In

the end, our Supreme Court concluded that the Seagraves test “is an appropriate

means to decide cases of this nature” because it “is intended to weigh the actions and

interests of employer and employee alike. Ultimately, the Seagraves rule aims to

provide a means by which the Industrial Commission can determine if the

circumstances surrounding a termination warrant preclusion or discontinuation of

injury-related benefits.” Id.

¶ 28 We thus are bound to reject Defendants’ argument, and hold that the Full
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Commission did not err by concluding that the Seagraves test does not apply in the

instant case.

¶ 29 Each of Defendants’ remaining arguments assumes the applicability of the

Seagraves test in this case. Accordingly, we need not address those arguments in light

of our decision.

III. Conclusion

¶ 30 For the foregoing reasons, the Full Commission’s Opinion and Award is

affirmed.

AFFIRMED.

Judges WOOD and GRIFFIN concur.