dissenting.
The sole issue on appeal is whether plaintiff has met his burden in establishing disability arising out of his admittedly compensable injury. Because the Commission’s opinion and award does not apply the controlling analytical framework set out in Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993), I would reverse and remand. I do not believe that the issue in this case can be resolved without consideration of Russell and, yet, the Commission’s opinion and award does not even mention Russell. Although the majority opinion concludes that Russell is inapplicable given the facts of this case, I disagree with its analysis of Russell, and I cannot agree that this Court should be addressing the applicability of each of the Russell prongs in the first instance. I must, therefore, respectfully dissent.
Both the majority opinion and the Commission’s opinion and award point to Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982), in which our Supreme Court held that an employee has the burden of proving “(1) that plaintiff was incapable after his injury of *400earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual’s incapacity to earn was caused by plaintiff’s injury.” The majority opinion seems to be holding that the Russell framework does not encompass the third prong of Hilliard requiring proof that the employee’s incapacity to earn wages was caused by the compensable injury.
However, the majority opinion and the Commission overlook the holding in Demery v. Perdue Farms, Inc., 143 N.C. App. 259, 545 S.E.2d 485, aff’d per curiam, 354 N.C. 355, 554 S.E.2d 337 (2001). This Court, as affirmed by the Supreme Court, explained an employee’s burden of proving “the existence of a disability under [the Workers’ Compensation Act].” Id. at 264, 545 S.E.2d at 489. The Court emphasized that “ ‘[disability,’ within the meaning of the ... North Carolina Workers’ Compensation Act, is defined as ‘incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.’ ” Id. (emphasis added) (quoting N.C. Gen. Stat. § 97-2(9) (1999)). In other words, proof of “disability,” as defined by the Workers’ Compensation Act, encompasses not only proof of an inability to earn the same wages, but also proof that the inability was caused by the compensable injury.
This Court pointed to Hilliard, as the majority and the Commission do in this case, regarding what “an employee has the burden of proving” in order “[t]o show the existence of a disability under [the Workers’ Compensation Act]”:
To show the existence of a disability under this Act, an employee has the burden of proving:
(1) that [she] was incapable after [her] injury of earning the same wages [she] had earned before [her] injury in the same employment, (2) that [she] was incapable after [her] injury of earning the same wages [she] had earned before [her] injury in any other employment, and (3) that [her] incapacity to earn was caused by [her] injury.
Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). The employee may meet her initial burden of production by producing:
(1) ... medical evidence that [she] is physically or mentally, as a consequence of the work *401related injury, incapable of work in any employment; (2) . . . evidence that [she] is capable of some work, but that [she] has, after a reasonable effort on [her] part, been unsuccessful in [her] effort to obtain employment; (3) . . . evidence that [she] is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) . . . evidence that [she] has obtained other employment at a wage less than that earned prior to the injury.
Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (citation omitted).
Demery, 143 N.C. App. at 264-65, 545 S.E.2d at 489-90 (emphasis added).
In other words, to prove “disability” - which encompasses both incapacity and causation, as Hilliard holds - the employee must meet one of the prongs of Russell. If the employee meets that initial burden of production, then “the burden of production shifts to the employer to show that suitable jobs are available and that the employee is capable of obtaining a suitable job taking into account both physical and vocational limitations.” Id. at 265, 545 S.E.2d at 490 (internal quotation marks omitted). The Court concluded by observing, citing Hilliard, 305 N.C. at 595, 290 S.E.2d at 683, that “[t]he burden of proving a disability, however, remains on the employee.” Demery, 143 N.C. App. at 265, 545 S.E.2d at 490.
I cannot see any way to read Demery - which is an opinion of the Supreme Court by virtue of the per curiam affirmance - as allowing the analysis adopted by the majority opinion and the Commission in this case. While some panels of this Court have suggested that the Russell methods of proof apply only to the first two prongs of Hilliard, see, e.g., Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755, 759, 656 S.E.2d 676, 679 (2008) (explaining that “[t]his Court has stated a claimant may prove the first two prongs of Hilliard through” one of four Russell prongs), Demery, because it was affirmed by the Supreme Court, is controlling.
Consequently, I would hold that the Commission erred in failing to apply the Russell analytical framework and also believe the majority opinion misapplies the controlling law. Indeed, the majority opinion *402notes that “[t]he purpose of the four-pronged Russell test is to provide channels through which an injured employee may ‘show a link between wage loss and the work-related injury’ as is required by Hilliard.” (Quoting Fletcher v. Dana Corp., 119 N.C. App. 491, 499, 459 S.E.2d 31, 36 (1995)) A “link” between wage loss and the compensable injury is the causation requirement set out in the third prong of Hilliard, which is the basis for the conclusion reached by the Commission and the majority opinion. In other words, Fletcher, on which the majority opinion relies, agrees with Demery that the Russell test not only establishes the method of proving wage loss, but also provides an employee with the method for linking that wage loss to his or her compensable injury.
Here, plaintiff contends that he met his burden of production as to the existence of his disability under Russell’s second method of proof. It is undisputed that he is capable of some work, although the record also contains evidence that he has restrictions resulting from the compensable injury. The Commission found that “Dr. Speer restricted Plaintiff from lifting over ten (10) pounds or engaging in repetitive overhead activities.” The Commission further found that “[fjollowing his layoff, Plaintiff sought subsequent employment within the construction industry.” The Commission made no finding regarding whether plaintiff’s efforts to obtain other employment were reasonable, but plaintiff presented evidence that he made numerous job inquiries and was unable to obtain employment.
I would hold that plaintiff’s evidence was sufficient, if believed, to meet the second prong of Russell. The burden of production, therefore, would then shift to defendants to show that there were suitable jobs that plaintiff was capable of obtaining. The Commission never shifted the burden to defendants, and its findings do not suggest that defendants met that burden. The Commission’s findings establish only that plaintiff was physically capable of performing the duties of his prior position and similar positions with other employers. They do not address whether there were any jobs that plaintiff could actually obtain.
Instead of applying the well-established Russell burden-shifting framework, the Commission held, as a matter of law, that “[a] Plaintiff is unable to meet their [sic] burden of proving disability where, but for economic factors, the employee is capable of returning to his pre-injury position.” As support for this broad statement, the Commission cites only Segovia v. J.L. Powell & Co., 167 N.C. App. 354, 608 S.E.2d 557 (2004). Segovia does not stand for that sweeping proposition, as this Court has previously recognized.
*403In Segovia, the Commission found that “ ‘the plaintiffs inability to earn wages since March 2001 was due to the layoff and plaintiffs lack of interest in returning to work, and not due to any disability associated with plaintiffs injury.’ ” Id. at 356, 608 S.E.2d at 559. The Commission then found that plaintiff had been offered a part-time job and “ ‘[t]he evidence established] that work was available which was suitable for plaintiff ” in the marketplace. Id. Yet, “plaintiff appeared to be trying to sabotage efforts to find alternative employment.” Id.
This Court, in affirming, concluded that the Commission’s findings were supported by (1) evidence that the plaintiff performed his job satisfactorily and was laid off because of a decline in business, (2) evidence that the parties stipulated plaintiff had no restrictions due to his compensable injury after a specified date, and (3) evidence regarding the plaintiffs vocational rehabilitation and employment prospects. Id. at 356-57, 608 S.E.2d at 559. The Court then concluded simply that “]t]hese findings support the full Commission’s conclusion that plaintiffs earning capacity is not currently affected by the injuries he suffered to his back and ear.” Id. at 357, 608 S.E.2d at 559.
Contrary to the Commission’s opinion and award in this case, the Segovia panel did not hold that an employee “is unable to meet [his] burden of proving disability where, but for economic factors, the employee is capable of returning to his pre-injury position.” Critical to the Commission’s decision in Segovia and this Court’s affirmance of that decision was not only the fact that the plaintiff was laid off, but also the facts that (1) the plaintiff had no restrictions arising out of his injuries, (2) suitable jobs were available to the plaintiff, and (3) the plaintiff was not interested in returning to work as demonstrated by his interference with efforts to find him alternative employment. In other words, the plaintiff in Segovia could not meet his burden under any of the prongs of Russell.
This Court has previously expressly rejected attempts to construe Segovia in the manner that the Commission did in this case and as the majority opinion does. In Eudy v. Michelin N. Am,., Inc., 182 N.C. App. 646, 654, 645 S.E.2d 83, 89 (2007) (emphasis added), the Court explained that in Segovia, “[t]his Court. . . held that the Full Commission did not err in denying an employee benefits under the Workers’ Compensation Act where the employee was physically able to perform his former job and the employee’s inability to earn wages was due to a layoff resulting from a downturn in the economy and the employee’s lack of interest in returning to work.”
*404Similarly, in Graham, although the Commission had concluded that the plaintiff proved disability under the second prong of Russell, the defendants argued on appeal, citing Segovia, that the Commission erred because the plaintiff’s termination from his employment with the defendant employer “was due to an economic downturn and plaintiff’s personal misconduct.” Id. at 758, 656 S.E.2d at 679. This Court affirmed the Commission based on its application of the Russell analytical framework. Id. at 760, 656 S.E.2d at 680. The Court distinguished Segovia by quoting Eudy’s description of Segovia as involving not just an economic downturn and then noted that while the Commission in Graham had properly determined that the plaintiff met his burden of proving disability under the second prong in Russell, the plaintiff in Segovia was physically able to do his job. Id. at 761, 656 S.E.2d at 680.
The Court in Graham then further addressed the defendants’ argument that the plaintiff could not prove disability because his lack of employment was due to an economic downturn:
“Defendants have focused on the wrong issue. While the immediate cause of the loss of plaintiff’s wages . . . may have been the lay-off, that fact does not preclude a finding of disability. As Peoples v. Cone Mills Corp., 316 N.C. 426, 437, 342 S.E.2d 798, 805 (1986) explained, an injured employee’s earning capacity is determined by the employee’s own ability to compete in the labor market. Thus, the fact that plaintiff was laid off does not preclude a finding of total disability if, because of plaintiff’s injury, he was incapable of obtaining a job in the competitive labor market.”
Id., 656 S.E.2d at 680-81 (quoting Britt v. Gator Wood, Inc., 185 N.C. App. 677, 683, 648 S.E.2d 917, 921 (2007)).
Thus, Eudy recognized that Segovia involved not only a lay-off, but also an employee who, although able to work, had made no effort to return to work, while Graham held that Segovia did not apply when an employee had made the showing mandated by Russell. See also Britt, 185 N.C. App. at 683, 648 S.E.2d at 921 (rejecting defendants’ argument that employee was not disabled because his loss of wage earning capacity was not the result of injury by accident but instead was due to economic downturn).
A critical distinction between these cases, as well as this case, and Segovia is that the plaintiffs in Eudy, Graham, and Britt were all at least partially disabled, as demonstrated by the existence of physical restrictions - the issue was whether that disability was causing any wage loss, *405just as is true in this case. In Segovia, the plaintiff was no longer disabled. He was simply unemployed.
While the majority opinion attempts to distinguish Eudy and Graham factually, it never addresses those opinions’ discussion of Segovia or the language in the actual Segovia opinion limiting its holding. In addition, the majority opinion incorrectly states that the laid off employee in Graham was not physically capable of performing his former job and, for that reason, sought different work. In fact, the defendants in Graham contended that the employee, who was an accountant, was fired because of “economics” and poor job performance. 188 N.C. App. at 757, 656 S.E.2d at 678. Neither the Commission nor this Court’s opinion in Graham suggested that the employee was unable to perform his prior job as an accountant because of his physical restrictions. Id. at 756-57, 656 S.E.2d at 678.
Further, the Segovia Court could not have reached the conclusion attributed to it by the Commission in this case without running afoul of Fletcher. In Fletcher, the Commission awarded temporary total disability even though the plaintiff was able to work despite physical restrictions when the plaintiff made extensive, although unsuccessful, efforts to gain employment over 17 months. 119 N.C. App. at 492-93, 459 S.E.2d at 33. The defendants argued that the Commission had misapplied Russell by focusing “ ‘on whether plaintiff was able to actually obtain employment’ instead of whether plaintiff was capable of earning the same wages.” Id. at 494, 459 S.E.2d at 34. The defendants asserted that “the holding of the full Commission in reliance upon Russell ‘in effect converged] temporary total disability [in]to unemployment compensation.’ ” Id. at 495, 459 S.E.2d at 34.
This Court in Fletcher affirmed the Commission’s award, holding that “an employee who suffers a work-related injury is not precluded from workers’ compensation benefits when that employee, while employable within limitations in certain kinds of work, cannot after reasonable efforts obtain employment due to unavailability of jobs.” Id. at 500, 459 S.E.2d at 37 (emphasis added).
In reaching this holding, the Court pointed to the purpose of the Workers’ Compensation Act: “ ‘[T]he Workers’ Compensation Act was enacted to ameliorate the consequences of injuries and illnesses in the workplace and one of those consequences, at least on occasion, is that a recuperated worker capable of holding a job cannot get one. A capable job seeker whom no employer needing workers will hire is not employable.’ ” Id. at 495, 459 S.E.2d at 34 (quoting Bridges v. Linn-Corriher *406Corp., 90 N.C. App. 397, 399-400, 368 S.E.2d 388, 390 (1988)). See also id. at 496, 459 S.E.2d at 35 (“ ‘The fact that the wage loss comes about through... unavailability of employment rather than through incapacity to perform the work does not change the result [of disability].’ ” (quoting 1C Arthur Larson, Larson’s Workmen’s Compensation Law, § 57-61(a), 10-389-97)).
The Court in Fletcher based its holding in part on opinions from Florida and Michigan, finding that “[t]he rationale of the foregoing authorities is sound and consistent with” our Court’s holdings in Russell and Bridges. 119 N.C. App. at 500, 459 S.E.2d at 37. The Fletcher Court quoted the Florida District Court of Appeal: “ ‘[I]n the broadest sense, “able to earn” takes into account many factors, including the availability of jobs, and such a broad interpretation is consistent. . . with the principle which requires a liberal construction in favor of the injured employee.’ ” Id. at 496, 459 S.E.2d at 35 (emphasis added) (quoting Regency Inn v. Johnson, 422 So. 2d 870, 875 (Fla. Dist. Ct. App. 1982)).
With respect to the argument that the Commission in effect converted workers’ compensation benefits into unemployment benefits, the Court quoted approvingly the Michigan Supreme Court: “ ‘[A] disabled worker does not bear the burden of unfavorable economic conditions that further diminish his ability to find suitable work.’ ” Id. at 499, 459 S.E.2d at 36 (quoting Sobotka v. Chrysler Corp., 447 Mich. 1, 25, 523 N. W.2d 454, 463 (1994)). The Court further quoted: “ ‘This means that the partially disabled employee’s only burden is to show he is unable to earn wages because of his injury, not that he must show that the economy or other factors are not the cause of unemployment.’ ” Id. (emphasis added) (quoting Sobotka, 447 Mich, at 8 n.5, 523 N.W.2d at 455 n.5).
Regarding the burden of production, the Fletcher Court quoted the Michigan Supreme Court: “ ‘[I]t is the employee’s burden to show a link between wage loss and the work-related injury. . . [.] [Ojnce the employee shows a work-related injury and subsequent wage loss, the factfinder may infer that the employee cannot find a job because of the injury.’ ” Id. (quoting Sobotka, 447 Mich, at 25, 523 N.W.2d at 463).
In North Carolina, as this Court acknowledged in Demery and Fletcher, an employee meets his burden of showing work-related disability through the four-pronged Russell test. Once the employee makes that showing, then the Commission may infer that the employee cannot find a job because of his injury. Under Fletcher, the employee is not required to show “ ‘the economy or other factors are not the cause of [his] unemployment.’ ” Id. (quoting Sobotka, 447 Mich, at 8 n.5, 523 N.W.2d at *407455 n.5). Yet, that is precisely the burden that the Commission and the majority opinion have placed on plaintiff in this case: the burden of proving that his unemployment was not due to the economy.
Because I believe, in light of the above authority, that the Commission acted under a misapprehension of law, I would reverse and remand for reconsideration. I believe the Commission should have determined whether plaintiff met his burden of production under Russell and, if so, whether defendants met their burden of showing that suitable jobs existed in the economy for plaintiff that he could actually obtain. The Commission swept aside - unmentioned - 40 years of authority that has been consistently applied and reached a conclusion that is squarely inconsistent with Fletcher and subsequent decisions.
It is too simplistic to assume, as the Commission did and the majority opinion does, that in a down economy, an employable employee with restrictions cannot show that his difficulties in obtaining another job are due to his injury. The Russell tests take into account the likelihood that prospective employers may prefer, in difficult economic conditions, to hire employees without restrictions. When presented with applicants who have no restrictions competing for a position with applicants with restrictions, we should recognize not only (1) that the prospective employers may well choose an applicant without restrictions, but also (2) that an employee is unlikely to be able to prove that he lost out on the job because of his restrictions. I, therefore, respectfully dissent.