Demery v. Perdue Farms, Inc.

HUDSON, Judge,

dissenting.

I believe that the cases from the Supreme Court and from this Court addressing our role in reviewing the findings of the Industrial Commission, the plaintiffs burden in establishing disability, and the defendant’s burden of proof in response, require us to affirm the Award of the Commission here. Therefore, I must dissent.

First, I do not believe that the standard of review as it is set forth in the majority opinion fully articulates the limited role of this Court in reviewing decisions of the Industrial Commission, as recently clarified by our Supreme Court. In Adams v. AVX Corp., 349 N.C. 676, 509 S.E.2d 411 (1998), the Supreme Court stated the following regarding the role of the reviewing Court with respect to findings of the Industrial Commission:

“The findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence.” Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 402, 233 S.E.2d 529, 531 (1977). Thus, on appeal, this Court “does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.” Anderson [v. Lincoln Constr. Co.], 265 N.C. at 434, 144 S.E.2d at 274.
N.C.G.S. § 97-86 provides that “an award of the Commission upon such review, as provided in G.S. 97-85, shall be conclusive and binding as to all questions of fact.” N.C.G.S. § 97-86 (1991). As we stated in Jones v. Myrtle Desk Co., 264 N.C. 401, 141 S.E.2d 632 *268(1965), “[t]he findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary.” Id. at 402, 141 S.E.2d at 633. The evidence tending to support plaintiffs claim is to be viewed in the light most favorable to plaintiff and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence. Doggett v. South Atl. Warehouse Co., 212 N.C. 599, 194 S.E. 111 (1937).

Id. at 681, 509 S.E.2d at 414 (emphasis added). Applying these principles to the case before us, I believe that we are bound by the findings of the Commission — because the evidence supports these findings— and that the findings support the conclusions.

As the majority has noted, this Court has identified four ways in which a plaintiff may satisfy her initial burden of establishing the existence of a disability. See Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993). According to the Russell court, one route of proving disability is by coming forth with medical evidence that the individual is physically or mentally, as a consequence of the work-related injury, incapable of work in any employment. See id. The Commission in this case specifically made the following findings:

23. Due to plaintiff’s accepted compensable carpal tunnel syndrome superimposed on fibromyalgia, plaintiff is unable to earn wages. This condition is not likely to improve and is likely to be permanent. Payment of disability under the company’s disability income plan is also evidence of inability to earn wages.
24. Plaintiff is disabled by constant and debilitating pain. Dr. Hansen could not disagree with that and would not criticize her decision to stop working as of February 1998. Dr. Anthony has approved her medical absence from work. Plaintiff’s carpal tunnel syndrome is part of this complex, along with fibromyalgia. Plaintiff’s compensable occupational disease, carpal tunnel syndrome, in combination with her other medical problems, including fibromyalgia, now renders her effectively totally disabled and entitled to benefits under N.C. Gen. Stat. § 97-29.

The Commission further concluded that “plaintiff is entitled to permanent total disability compensation . . . since she is unable to earn wages because of her compensable carpal tunnel syndrome and its interactions with fibromyalgia.” The medical evidence certainly *269supports the Commission’s findings that plaintiffs physical condition, combined with her pain, have rendered her unable to perform even the minimal duties of her last job, which the Commission found to be “make work.” Furthermore, plaintiffs perception of “debilitating pain,” with which her doctors could not disagree, in combination with her diagnosed physical conditions found by the Commission, constitute medically-documented “physical or mental” consequences of her occupational disease which render plaintiff incapable of work in any employment. Viewing the evidence in the light most favorable to plaintiff, and giving plaintiff the benefit of every reasonable inference to be drawn from that evidence, I believe the evidence supports the finding that plaintiff has established her disability pursuant to the first method in Russell.

Further, in support of these findings are documents from the defendant’s own medical file on plaintiff. Contained therein are several “Medical Information Forms” showing that plaintiff was suffering from carpal tunnel syndrome, and that her carpel tunnel syndrome worsened and required increasing restrictions — meaning less strenuous duties — until plaintiff was unable to perform any meaningful job duties at all. The record reflects, and the Commission found, that she last actually worked on 7 February 1998. The defendant’s medical file also contains notes, submitted in support of plaintiff’s request for disability pay, dated 2/6/98, 3/6/98, 4/6/98 and 5/5/98 and signed by Dr. Anthony. These notes indicate that plaintiff should be excused from work because of increasing pain from her tendinitis and arthritis exacerbation, among other physical conditions. For example, three of the four notes state as follows:

2/6/98 — Ms. Demery was seen in clinic today with worsening arm, back & knee pain due to tendonitis and osteoarthritis exacerbation. She should rest home until she improves (anticipate two-to-four weeks). Please excuse absences 2/8/98-3/8/98, inclusive?
3/6/98 — Ms. Demery was seen in clinic follow-up today without any subjective improvement in pain in her hands, arms, back and left knee, despite meds and rest. She was unable to followup with neurology as directed due to financial constraints. She will be unable to return to her previous work environment involving repetitive motion and cold' exposure and should continue to refrain from these. She will likely require rheumatology or orthopedic consultation. Please excuse absences from work? Return date is indeterminate.
*2705/5/98 — Ms. Demery was seen today in clinic followup with persistent pain complaints bilateral hands and stiffness right side and upper extremity swelling. She has severe carpal tunnel syndrome and fibromyalgia and should continue to avoid repetitive motion, cold exposure and exacerbating activities. Please excuse absences from work? Return date is undetermined.

These notes were the basis for the approval of her application for disability benefits, which was also filled out and signed by Dr. Anthony, indicating that “Patient has been continuously disabled from work” since 8 February 1998. Accordingly, there is plentiful medical evidence to support the findings of the Commission that the plaintiff had proved her disability and had been continuously unable to earn wages since her last date of work.

Once plaintiff has proved her disability, as the Commission found in this case, the burden shifts to the employer to establish wage-earning capacity. In Saums v. Raleigh Community Hospital, 346 N.C. 760, 487 S.E.2d 746 (1997), the Supreme Court explained at length the concepts which come into play in the determination of whether a defendant-employer, by providing a modified job to the plaintiff, has satisfied its burden of proving the plaintiff has regained wage-earning capacity. In Saums, the plaintiff sustained a, back injury, underwent surgery twice, and received benefits following the entry and approval of a Form 21. The plaintiff returned to work at a modified light duty job (“quality control clerk”) for more than a year, and then left her job with increased pain. After several months, the plaintiff underwent surgery a third time, at which point her benefits resumed. At the end of her recovery from the third surgery, her physician released her to return to the modified job, stating that he could not “find any hard reason why this patient should not be allowed to return to the job that was created by you which would eliminate any strenuous activities.” She declined to return to the job and the defendant refused to restart her weekly benefits.

The Supreme Court held that the plaintiff was cloaked in the presumption of ongoing disability by virtue of the Form 21 agreement. See id. at 763, 487 S.E.2d at 749. “After the presumption attaches, ‘the burden shifts to [the employer] to show that plaintiff is employable.’ ” Id. (quoting Dalton v. Anvil Knitwear, 119 N.C. App. 275, 284, 458 S.E.2d 251, 257, disc. review denied and cert. denied, 341 N.C. 647, 462 S.E.2d 507 (1995)). The Supreme Court went on to explain that:

*271The employee need not present evidence at the hearing unless and until the employer, “claim [ing] that the plaintiff is capable of earning wagesf,] . . . come[s] 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.”

Id. at 763-64, 487 S.E.2d at 749 (quoting Kennedy v. Duke Univ. Med. Center, 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990)). The Court then held that the defendant’s evidence of an available job, created for and offered to the plaintiff, and within plaintiffs physical limitations, did not rebut the presumption of disability, since this “modified job” was not an accurate reflection of the plaintiffs earning ability in the competitive marketplace, and since there was no evidence that any employer other than the defendant would hire the plaintiff at that wage. See id. at 764-65, 487 S.E.2d at 750. Quoting its previous decision in Peoples v. Cone Mills, 316 N.C. 426, 342 S.E.2d 798 (1986), the Saums court explained why the evidence was insufficient to establish wage-earning capacity:

If the proffered employment does not accurately reflect the person’s ability to compete with others for wages, it cannot be considered evidence of earning capacity. Proffered employment would not accurately reflect earning capacity if other employers would not hire the employee with the employee’s limitations at a comparable wage level. The same is true if the proffered employment is so modified because of the employee’s limitations that it is not ordinarily available in the competitive job market. The rationale behind the competitive measure of earning capacity is apparent. If an employee has no ability to earn wages competitively, the employee will be left with no income should the employee’s job be terminated. . . .
[T]he Workers’ Compensation Act does not permit [defendant] 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 and which [defendant] could terminate at will or, as noted above, for reasons beyond its control.
In this case, it has not been established that the quality control clerk position offered to plaintiff is an accurate measure of plaintiff’s ability to earn wages in the competitive job market. There is no evidence that employers, other than de *272 fendant, would hire plaintiff to do a similar job at a comparable wage.

Saums, 346 N.C. at 764-65, 487 S.E.2d at 750 (internal quotation marks and citations omitted) (emphasis added).

There is no meaningful distinction between the evidence presented here and the evidence presented in Peoples or Saums, and the Commission here correctly held that the modified job held by plaintiff until 7 June 1998 did not reflect any ability to earn wages. The defendant’s argument that the “duties” performed by the plaintiff in her last modified job (in which her supervisor testified that at times plaintiff “stood around and did not do very much”) is nearly identical to the argument which was rejected by the Supreme Court in Saums.

We are required by Adams to view the evidence in the light most favorable to plaintiff and to give plaintiff the benefit of every reasonable inference that may be drawn from the evidence. Pursuant to this standard of review, I believe the evidence fully supports the Commission’s findings and conclusions that plaintiff has no wage-earning capacity, that plaintiff was entitled to a presumption of ongoing disability, and that defendant failed to come forward with evidence to overcome the presumption of ongoing disability once it arose. Therefore, I vote to affirm.