Appeal by defendant from opinion and award of the North
Carolina Industrial Commission filed 19 November 1999. Heard in
the Court of Appeals 13 February 2001.
Daniel F. Read for plaintiff-appellee.
Haynsworth Baldwin Johnson & Greaves LLC, by Brian M.
Freedman, for defendant-appellant.
GREENE, Judge.
Defendant Perdue Farms, Inc. (Perdue) appeals an opinion and
award of the Full Commission of the North Carolina Industrial
Commission (the Commission) filed 19 November 1999 awarding
Ernestine Demery (Plaintiff) permanent total disability
compensation.
The record shows that at the time of her workers' compensation
hearing, Plaintiff had been working for Perdue for thirteen years. Plaintiff testified her job with Perdue was the only job she had
ever had. In 1992, Plaintiff's employment duties consisted of
“hanging birds on the line.” During this time period, Plaintiff
began experiencing pain and numbness in her hands and arm, which
she reported to Perdue. Perdue instructed Plaintiff to see
Josephus Bloem, M.D. (Dr. Bloem), who diagnosed Plaintiff as having
carpal tunnel syndrome in both of her hands. Plaintiff received
medical treatment from Dr. Bloem, including an injection in one of
her hands and prescription medication; however, she continued to
experience pain in her arm, shoulder, and neck. In addition,
Plaintiff could “hardly sleep at night” because of pain in her
hands. In 1993, Plaintiff was seen by Thomas Bergfield, M.D. (Dr.
Bergfield). At that time, she complained of pain related to carpel
tunnel syndrome and she informed Dr. Bergfield that she had
difficulty sleeping.
In 1995, Plaintiff's job duties at Perdue were changed to
working “on the giblet machines.” Working on the giblet machines
required Plaintiff to use her hands to pick up hearts, gizzards,
necks, and livers and place them into “slot[s].” This work
required continuous use of Plaintiff's hands and Plaintiff
testified that as a result of this work her hands “were hurting”
and she experienced cramping in one of her hands. Plaintiff
reported these problems to Perdue.
In February 1996, Perdue sent Plaintiff to see Robert Hansen,
M.D. (Dr. Hansen), a board certified physician in neurology and
clinical neurophysiology. Dr. Hansen worked on a contract basis
with Perdue. After Dr. Hansen performed diagnostic testing onPlaintiff, including EMG tests, he diagnosed Plaintiff as having
carpel tunnel syndrome and fibromyalgia which is “a syndrome in
which people have pain in the axial muscles.” Based on comparisons
of EMG tests performed on Plaintiff in 1992 and 1996, Dr. Hansen
determined there had been “some improvement” in Plaintiff's carpel
tunnel syndrome and her condition was “not getting any worse.” He
testified the treatment Plaintiff had undergone prior to that time,
which included modifying her work duties, was “successful in
arresting the course of the illness.” Dr. Hansen continued to
treat Plaintiff by means of modifying her job duties, including
rotating Plaintiff to various jobs and eliminating repetitious
activities such as using knives and scissors. He also treated her
with the use of medications and splints.
Dr. Hansen examined Plaintiff for a second time in April 1996
and Plaintiff complained at that time of pain in her wrists and
forearm. Dr. Hansen determined Plaintiff's carpel tunnel syndrome
was “stable” and “the pain she was having in her forearm was from
tendonitis.” Dr. Hansen prescribed anti-inflammatory medication to
treat the tendonitis. In Dr. Hansen's opinion, Plaintiff was able
to continue working with the previously recommended modifications.
Dr. Hansen saw Plaintiff for follow-up visits in July 1996 and
September 1996. Dr. Hansen believed there was “improvement” in
Plaintiff's carpel tunnel syndrome at the time of the September
visit, and he attributed this improvement to job modifications,
medication, and the use of splints. In December 1996, Dr. Hansen
prescribed physical therapy for Plaintiff with Bruce Tetalman, M.D.
(Dr. Tetalman). After examining Plaintiff, Dr. Tetalman assignedpermanent partial disability ratings of 7% to “both of [her] upper
extremities.”
When Dr. Hansen examined Plaintiff in 1997, he determined,
based on EMGs performed on Plaintiff, that her carpel tunnel
syndrome was continuing to improve. He believed her condition was
“adequately managed with frequent job rotations and proper use of
medications.” In February 1998, Dr. Hansen examined Plaintiff and
determined that with job modifications she was able to continue
working at Perdue. He testified that although he believed
Plaintiff had some pain, “[t]here was nothing that [he] saw in
[her] that would have disqualified her from doing some sort of
modified productive job at the plant.” Dr. Hansen examined
Plaintiff again in May 1998 and July 1998, and he did not believe
at either of these times that there were any medical reasons
Plaintiff was unable to work. Dr. Hansen testified he told
Plaintiff that if “'the mere fact of working in the plant produces
all the pains'” that Plaintiff complained of, “then an option would
be to stop working and to pursue Social Security Disability.” When
asked by Plaintiff's counsel whether it was “reasonable” for
Plaintiff to decide at some point that she could no longer work,
Dr. Hansen responded:
I do not fault her for making that
decision. . . . I would never tell somebody
. . . they should do something that hurts
them. But if you . . . ask me if there's a
. . . medical reason why somebody could not do
the job, I'd have to say no. But I certainly
have sympathy for the fact that she felt that
it was uncomfortable enough for her that she
no longer wanted to work.
Daniel Lee, M.D. (Dr. Lee), a board certified physician inneurology, psychiatry, and sleep disorder medicines, test
ified he
examined Plaintiff on 30 May 1997. Dr. Lee testified he would
recommend the following job restrictions for someone with
Plaintiff's medical conditions: avoidance of duties requiring
repetitive movement and avoidance of performing the same task for
more than twenty minutes. Dr. Lee suggested such an employee
should work in a position with rotating duties or, in the
alternative, take a break for up to twenty minutes. Dr. Lee
classified Plaintiff's carpel tunnel syndrome “as moderate to
severe range.” Dr. Lee stated that assuming Plaintiff's job duties
at Perdue did not require repetitive motion or heavy lifting, she
would have been capable of performing her job duties in 1997.
Fred Clark, Jr. (Clark) testified he was Plaintiff's
supervisor at Perdue in 1998. At that time, Plaintiff's job title
was “[g]iblet service.” Clark was aware of Plaintiff's medical
restrictions and her duties at Perdue complied with those
restrictions. Clark described Plaintiff's duties as “doing hourly
checks” on wrap, performing “temperature checks,” and “putting
livers in a cup.” When Plaintiff was not performing these duties,
“[t]here may [have been] some point in time that she . . . stood up
there [against the wall] and . . . [did not do] very much.”
In February 1998, Plaintiff went to see Meredith R. Anthony,
M.D. (Dr. Anthony), who was Plaintiff's family physician.
Plaintiff testified that at that time her job duties consisted of
“odd-jobs” and she was unable to perform any “steady” job.
Plaintiff testified Dr. Anthony “took [her] out of work because
[she] told him [she] was hurting.” Dr. Anthony did not testify andPlaintiff did not present evidence of her medical records from Dr.
Anthony. The record, however, does contain copies of several notes
signed by Dr. Anthony excusing Plaintiff from work. A note dated
6 March 1998 states, “[Plaintiff] will be unable to return to her
previous work environment involving repetitive motion and cold
exposure and should continue to refrain from these.” Additionally,
a note dated 5 May 1998 states Plaintiff “should continue to avoid
repetitive motion, cold exposure and exacerbating activities.”
Plaintiff stopped reporting to work on 7 February 1998. In
March 1998, Plaintiff received a letter from Perdue notifying her
that she would be terminated if she did not return to work.
Plaintiff testified that she returned to work; however, she was
told to “go home” when she refused to leave the medication she had
received from Dr. Anthony at the front desk while she was working.
Plaintiff's last date of work with Perdue was in March 1998.
Subsequent to Plaintiff's hearing, the Commission made the
following pertinent findings of fact:
1. At the time of the hearing, . . .
[P]laintiff was a thirty-two year old high
school graduate . . . .
. . . .
14. On 1 April 1997, Dr. Tetalman found
[P]laintiff to be at maximum medical
improvement and rated . . . [P]laintiff as
retaining a seven percent permanent partial
impairment rating to each of her upper
extremities.
. . . .
18. On 2 February 1998, Dr. Hansen told
[P]laintiff that her duties at the plant were
minimal and he could not conceive of how they
could be made any lighter. He further stated
that if the job caused her so much pain, shehad the option of stopping work and pursuing
Social Security Disability.
19. . . . [P]laintiff last worked for
[Perdue] on 7 February 1998. In March of
1998, [Perdue] sent [P]laintiff a letter to
return to work. However, when [P]laintiff
returned to work with medications prescribed
by Dr. Anthony, she was sent home. She did
not return to work after that incident. She
was unable to work because of the accepted
carpel tunnel syndrome superimposed on
fibromyalgia. She received short-term
disability through an employer-funded plan
. . . for twenty-six weeks.
20. On 23 April 1998, an EMG showed
continuing carpel tunnel syndrome with no
significant worsening, although [P]laintiff
was still presenting with pain and swelling.
Dr. Hansen further opined that on the modified
duty, [P]laintiff's carpel tunnel condition
had stabilized and he did not believe anything
further could be done for her.
. . . .
23. Due to [P]laintiff's accepted
compensable carpel tunnel syndrome
superimposed on fibromyalgia, [P]laintiff 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. . . .
The Commission then concluded as a matter of law: “[P]laintiff is
entitled to permanent total disability compensation at the rate of
$200.01 per week from February 7, 1998, since she is unable to earn
wages because of her compensable carpal tunnel syndrome and its
interactions with fibromyalgia.”
______________________________
The dispositive issue is whether the Commission's finding of
fact that “[d]ue to [P]laintiff's accepted compensable carpal
tunnel syndrome superimposed on fibromyalgia, [P]laintiff is unable
to earn wages” is supported by competent evidence.
Appellate review of a decision of the Commission is limited to
whether the record contains competent evidence to support the
Commission's findings of fact, and whether the findings of fact
support the Commission's conclusions of law.
Hemric v.
Manufacturing Co., 54 N.C. App. 314, 316, 283 S.E.2d 436, 437-38
(1981),
disc. review denied, 304 N.C. 726, 288 S.E.2d 806 (1982).
“Disability,” within the meaning of the 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.” N.C.G.S. §
97-2(9) (1999). 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 related 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) (citations omitted). Once an employee meets
her initial burden of production, 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.”
Kennedy v. Duke
Univ. Med. Center, 101 N.C. App. 24, 33, 398 S.E.2d 677, 682
(1990). The burden of proving a disability, however, remains on
the employee.
Hilliard, 305 N.C. at 595, 290 S.E.2d at 683.
Whether a disability exists is a question of law.
Id.
In this case, the Commission found as fact that “[d]ue to
[P]laintiff's accepted compensable carpal tunnel syndrome
superimposed on fibromyalgia, [P]laintiff is unable to earn wages.”
Initially, we note the Commission did not make any findings of fact
that Plaintiff is unable to earn wages
in any employment.
See
Russell, 108 N.C. App. at 765, 425 S.E.2d at 457. Nevertheless,
assuming the Commission did make such a finding, the issue before
this Court is whether the record contains competent evidence to
support such a finding. The record contains evidence Plaintiff
suffered from pain as a result of her carpel tunnel syndrome whileworking for Defendant. Although evidence a plaintiff suffers from
pain as a result of her compensable injury may be competent
evidence to support a conclusion the plaintiff is disabled,
see
Niple v. Seawell Realty & Insurance Co., 88 N.C. App. 136, 139, 362
S.E.2d 572, 574 (1987) (plaintiff's degree of pain may be
considered when determining whether he or she is capable of work),
disc. review denied, 321 N.C. 244, 365 S.E.2d 903 (1988), the
evidence must show that pain renders the Plaintiff incapable of
work in any employment,
see, e.g., Errante v. Cumberland County
Solid Waste Management, 106 N.C. App. 114, 118, 415 S.E.2d 583,
585-86 (1992) (plaintiff's testimony he suffered from excessive
pain, in conjunction with his physician's testimony plaintiff could
not “'do any kind of gainful employment at this time, under any
light duty of any kind'” is competent evidence plaintiff is
permanently and totally disabled). In the case
sub judice, the
record does not contain any such evidence.
(See footnote 1)
Plaintiff did not
present any evidence from a medical doctor or vocational specialist
that she is unable to work in any employment.
(See footnote 2)
Additionally,Plaintiff did not testify she was incapable as a result of her pain
of working in any employment. Moreover, evidence Plaintiff had a
7% permanent partial impairment rating on her upper extremities and
that she had job restrictions is not medical evidence Plaintiff has
a permanent total disability.
See Demery v. Converse, Inc., 138
N.C. App. 243, 250-52, 530 S.E.2d 871, 876-77 (2000) (evidence
plaintiff had a 20% partial impairment to his back and evidence
plaintiff had permanent work restrictions insufficient to support
conclusion plaintiff suffered a permanent total disability);
Royce
v. Rushco Food Stores, Inc., 139 N.C. App. 322, 331-32, 533 S.E.2d
284, 290 (2000) (Commission's findings of fact that “'plaintiff is
not capable of working in a job that requires standing from eight
to ten hours a day,'” that plaintiff could “'perform a seated job
if she can keep her leg elevated most of the time,'” and that
plaintiff “'made no effort to find alternative employment within
her restrictions after she reached maximum medical improvement'”
support the Commission's conclusion plaintiff did not meet burden
of showing it would be futile for her to seek other employment);
Bridges v. Linn-Corriher Corp., 90 N.C. App. 397, 400-01, 368
S.E.2d 390-91 (evidence plaintiff was 61 years old with a fifth
grade education, that he was skilled only in work that he was
physically unable to perform, that he was afflicted with an easily
aggravated breathing condition, and that he attempted but wasunable to obtain employment is sufficient to show plaintiff has an
impaired earning capacity),
disc. review denied, 323 N.C. 171, 373
S.E.2d 104 (1988). Finally, evidence Plaintiff received payments
pursuant to an employer-funded disability plan is not evidence
Plaintiff is disabled within the meaning of the Workers'
Compensation Act unless the evidence shows those payments were made
because Plaintiff was incapable, due to her carpel tunnel syndrome,
of earning wages she had earned before this injury in the same or
any other employment. Accordingly, the 19 November 1999 opinion
and award of the Commission is reversed.
Because we reverse the opinion and award of the Commission, we
need not address Perdue's additional assignments of error.
Reversed.
Judge MCCULLOUGH concurs.
Judge HUDSON dissents.
=======================
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 plaintiff's 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 IndustrialCommission, 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 (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
plaintiff's 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 ProductDistribution, 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 supports the Commission's findings that
plaintiff's 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,
plaintiff's perception of “debilitating pain,” with which her
doctors could not disagree, in combination with her diagnosedphysical 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 clinicfollow-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.
5/5/98 -- 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 benefitsfollowing 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:
The employee need not present evidence at the
hearing unless and until the employer,
“claim[ing] that the plaintiff is capable of
earning wages[,] . . . 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 withinplaintiff's physical limitations, did not rebut the presumption of
disability, since this “modified job” was not an accurate
reflection of the plaintiff's 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 defendant, 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 (citations omitted).
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.
Footnote: 1
