Appeal by plaintiff from Opinion and Award of the North
Carolina Industrial Commission filed 2 November 1999. Heard in the
Court of Appeals 20 February 2001.
Franklin Smith for plaintiff appellant.
McElwee Firm, P.L.L.C., by Karen Inscore McElwee, for
defendant appellees.
McCULLOUGH, Judge.
On 16 February 1993, plaintiff Ricky Johnson injured his knee
while working for defendant Lowe's Companies, Inc., when he slipped
in a puddle of oil and twisted his leg. Plaintiff sustained a
thirty percent permanent partial impairment to his right knee.
Plaintiff and defendant-employer entered into a Form 21 Agreement
for Compensation for Disability, which was approved by the
Industrial Commission on 3 May 1993. On 26 November 1997,
defendants deposed plaintiff in an effort to determine his ability
to engage in employment and other activities. Plaintiff testifiedat his deposition that his knee problems had intensified such that
his everyday activities were extremely restricted. Specifically,
plaintiff stated that he could not crouch down, kneel, squat or
stand for more than twenty minutes.
Following a criminal indictment of plaintiff on 10 December
1997 for fraudulently obtaining workers' compensation benefits and
for perjury, defendants filed a Form 24 Application to Terminate or
Suspend Payment of Compensation with the Industrial Commission,
claiming that plaintiff had "fraudulently misrepresented his
condition that he was unable to work." Plaintiff, responding
through counsel, contested the termination of benefits, stating
that he had "been given total and permanent disability by his
treating physician, Dr. Walton W. Curl on February 7, 1994[,]" and
that "after completing the treatment provided for him by his
employer and after finishing a rehabilitation program, he [was]
still unable to stand on his right leg for any prolonged period of
time."
On 27 August 1998, the matter was heard before a deputy
commissioner of the Industrial Commission, whose opinion and award
was later adopted by the Full Commission (Commission). Upon
reviewing the testimony of numerous witnesses, as well as
videotaped surveillance of plaintiff conducted by both defendants'
and the Industrial Commission's investigators, the Commission found
that "[p]laintiff has consistently misrepresented his knee
condition and his physical capacity to work to his health care
providers, including Dr. Curl, and his employer[,]" and that
"plaintiff has repeatedly demonstrated the capacity to engage inactivities through which he could earn wages. He is able to work
as an auto mechanic. He is able to work in logging. He is capable
of standing, walking, kneeling, stooping, and bending on a
continuous basis. He is capable of lifting more than just a light
load or more than 30 pounds, on an occasional basis." The
Commission concluded that defendants had rebutted the presumption
of an ongoing disability arising from the Form 21 Agreement, and
that plaintiff had the capacity to earn wages in gainful and
suitable employment. The Commission further awarded defendants
attorney's fees "incurred as a result of plaintiff's unfounded
litigiousness." Plaintiff appealed to this Court.
Plaintiff argues that the Commission erred by failing to apply
the presumption that plaintiff's disability continued until he
returned to work at the same wage earned prior to the injury.
Plaintiff also contends that defendants failed to prove that
plaintiff was employable, and that plaintiff's medical evidence as
to his infirmity outweighs the testimony of numerous witnesses and
videotaped surveillance of plaintiff regarding his ability to
engage in physical activity.
On appeal of cases from the Industrial Commission, our review
is limited to two issues: "'[W]hether the Commission's findings of
fact are supported by competent evidence and whether the
Commission's conclusions of law are justified by its findings of
fact.'" In re Stone v. G & G Builders, 346 N.C. 154, 157, 484
S.E.2d 365, 367 (1997) (quoting Hendrix v. Linn-Corriher Corp., 317
N.C. 179, 186, 345 S.E.2d 374, 379 (1986)). Because it is the
fact-finding body, the Commission is "'the sole judge of thecredibility of the witnesses and the weight to be given their
testimony.'" Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d
411, 413 (1998)(quoting Anderson v. Lincoln Constr. Co., 265 N.C.
431, 433-34, 144 S.E.2d 272, 274 (1965)). The Commission's
findings of fact are conclusive on appeal if they are supported by
any competent evidence. Gallimore v. Marilyn's Shoes, 292 N.C.
399, 402, 233 S.E.2d 529, 531 (1977). Accordingly, 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, 265 N.C. at 434, 144 S.E.2d at
274. In the instant case, we conclude that the Commission's
findings of fact are supported by competent evidence that in turn
justifies the Commission's conclusions of law.
In order to qualify for compensation under the Workers'
Compensation Act, a claimant must prove both the existence and the
extent of disability. Hilliard v. Apex Cabinet Co., 305 N.C. 593,
595, 290 S.E.2d 682, 683 (1982). In the context of a claim for
workers' compensation, disability refers to the impairment of the
injured employee's earning capacity. Peoples v. Cone Mills Corp.,
316 N.C. 426, 432, 342 S.E.2d 798, 804 (1986). "If an award is
made by the Industrial Commission, payable during disability, there
is a presumption that disability lasts until the employee returns
to work . . . ." Watkins v. Motor Lines, 279 N.C. 132, 137, 181
S.E.2d 588, 592 (1971). As stated in Rule 404(1) of the Workers'
Compensation Rules of the North Carolina Industrial Commission andnoted by our Supreme Court in In re Stone, however, "this
presumption of continued disability is rebuttable." In re Stone,
346 N.C. at 157, 484 S.E.2d at 367. In the instant case, any
presumptions existing in favor of plaintiff-employee have been
rebutted by defendants through witness testimony, videotaped
surveillance of plaintiff, as well as medical evidence and strong
evidence of fraud.
In Stone v. G & G Builders, 121 N.C. App. 671, 674, 468 S.E.2d
510, 512, disc. review allowed, 343 N.C. 757, 473 S.E.2d 627
(1996), reversed, 346 N.C. 154, 484 S.E.2d 365 (1997), this Court
determined that the defendant-employer failed to rebut the
presumption of an ongoing disability raised by a Form 21 Agreement,
even though the Industrial Commission had found that plaintiff-
employee was capable of returning to work at his regular job.
"[I]t does not necessarily follow that an employee who returns to
his 'regular job' will earn the same wages he earned before his
injury." Stone, 121 N.C. App. at 674, 468 S.E.2d at 512.
Reversing this decision, our Supreme Court held that the defendant-
employer had successfully rebutted the presumption of plaintiff's
disability "through medical and other evidence." In re Stone, 346
N.C. at 157, 484 S.E.2d at 368. The Court noted that defendants
had introduced videotaped surveillance of plaintiff performing
various activities, including painting overhead with a roller,
lifting and carrying plywood, trimming overhead branches, and
throwing horseshoes. Defendants also introduced medical evidence
that plaintiff retained no permanent partial impairment to hisback, and that plaintiff could return to regular employment with
certain restrictions. The Court further observed that the
Industrial Commission found plaintiff's testimony regarding his
inability to engage in the same or any other employment at the same
wages neither credible nor convincing. Because defendants had
successfully rebutted the presumption of plaintiff's disability,
the Court reinstated the Industrial Commission's opinion and award
for defendants.
Harrington v. Adams-Robinson Enterprises, 128 N.C. App. 496,
495 S.E.2d 377, reversed, 349 N.C. 218, 504 S.E.2d 786 (1998)
(Harrington I), further illustrates an employer's successful
rebuttal of a presumption of disability arising from a Form 21
Agreement where there is evidence of fraud by the employee. In
that case, plaintiff-employee and defendant-employer entered into
a Form 21 Agreement after plaintiff suffered compensable injuries
while in the scope of his employment. Although he sustained
permanent partial impairment to his back, plaintiff was eventually
released to work by his physician, at which time defendant filed to
terminate benefits. The Industrial Commission agreed with
defendant that plaintiff had no further claim for workers'
compensation benefits and terminated such benefits. On appeal to
this Court, plaintiff argued that the Industrial Commission erred
in concluding that defendant had rebutted the presumption of
disability because defendant had presented no evidence concerning
plaintiff's wage-earning capacity. Plaintiff contended that,
because defendant had not offered him a job, nor had it shown thatthere were any jobs available which plaintiff could perform,
defendant had not shown that plaintiff was capable of earning wages
greater than or at the level he was earning at the time of his
injury. A divided panel of this Court agreed with plaintiff,
holding that defendant had not met its burden of disproving
plaintiff's disability. The Court stated that "[u]pon a showing of
disability by the employee, the employer must produce evidence that
suitable jobs are available for the employee and that the employee
is capable of getting a job." Harrington I, 128 N.C. App. at 498,
495 S.E.2d at 378. Because there was "no evidence to support a
finding that the plaintiff retained any earning capacity after he
was released by his doctors[,]" defendant failed to rebut the
presumption of plaintiff's disability. Id. at 499, 495 S.E.2d at
379.
Quoting Stone, Judge Walker dissented from the majority,
asserting that, "'as stated in Rule 404(1) of the Workers'
Compensation Rules of the North Carolina Industrial Commission,
[the] presumption of continuing disability [until the employee
returns to work] is rebuttable.'" Harrington I, 128 N.C. App. at
500, 495 S.E.2d at 380 (quoting In re Stone, 346 N.C. at 157, 484
S.E.2d at 367) (Walker, J., dissenting). Noting that the Industrial
Commission found that plaintiff's testimony of continuing pain was
not credible, and that he had been released to work, Judge Walker
concluded that "the presumption existing in favor of the plaintiff
was rebutted by the defendant through medical and other evidence."
Harrington I, 128 N.C. App. at 501, 495 S.E.2d at 380. Defendant appealed to our Supreme Court, arguing that,
because
it had adequately rebutted the presumption of plaintiff's
disability, the decision by the Court of Appeals in favor of
plaintiff should be reversed. Plaintiff again rejoined that,
because defendant had not rehired plaintiff, nor provided
vocational assistance, nor shown suitable and available job
opportunities for plaintiff, defendant had not proven that
plaintiff was capable of earning wages greater than or at the level
he was earning at the time of his injury. Our Supreme Court,
writing per curiam, rejected plaintiff's argument, again reversing
the Court of Appeals "[f]or the reasons stated in the dissenting
opinion of Judge Walker[.]" Harrington v. Adams-Robinson
Enterprises, 349 N.C. 218, 504 S.E.2d 786 (1998) (Harrington II).
In re Stone and Harrington II make clear that, although a Form
21 agreement creates a presumption that an employee is disabled
until he returns to work, the presumption of disability may be
rebutted by an employer through medical and other evidence. See In
re Stone, 346 N.C. at 157, 484 S.E.2d at 367; Harrington I, 128
N.C. App. at 500, 495 S.E.2d at 380; Workers' Comp. R. of the N.C.
Indus. Comm'n 404(1), 2001 Ann. R. (N.C.) 745. Such "other
evidence" includes evidence that the employee is capable of
obtaining suitable and available employment. Davis v. Embree-Reed,
Inc., 135 N.C. App. 80, 84, 519 S.E.2d 763, 765, disc. review
denied, 351 N.C. 102, 541 S.E.2d 143 (1999); see also Stamey v.
N.C. Self-Insurance Guar. Ass'n, 131 N.C. App. 662, 665, 507 S.E.2d596, 599 (1998) ("The employer may rebut the presumption of
continuing disability 'through medical and other evidence,'
including evidence 'that suitable jobs are available to the
employee . . . .'") Id. (citation omitted). The issue now before
this Court is whether strong evidence of fraud, coupled with
evidence that plaintiff-employee is, in fact, working, is enough to
rebut the presumption of plaintiff's continuing disability. We
believe that, under the facts of this case, such evidence is
sufficient.
In the instant case, defendants presented medical evidence
that plaintiff had been released to work, albeit with restrictions,
by his physician, Dr. Walton Curl. Dr. Curl opined that plaintiff
was physically capable of "get[ting] a job working on cars. He
seems to be comfortable doing that." Contrary to plaintiff's claim
in his response to defendants' application to terminate benefits,
Dr. Curl's 7 February 1994 note did not state that plaintiff
suffered from "total and permanent disability," but rather that
plaintiff was "permanently disabled." Dr. Curl testified that he
did not mean to imply with his note that plaintiff was totally and
permanently disabled, only that plaintiff had sustained a permanent
impairment to his knee. Further, after viewing videotaped
surveillance of plaintiff, Dr. Curl admitted that, based upon
plaintiff's subjective presentation of his injury during the course
of treatment, plaintiff's videotaped activities exceeded the level
of performance of which he thought plaintiff capable.
In addition to the medical evidence, defendants also presented
lengthy videotaped surveillance of plaintiff. One of thevideotapes, dated October 1997, shows plaintiff working at a
logging operation, cutting felled trees with a chain saw.
Plaintiff's filmed activities include prolonged standing, walking,
stooping, kneeling, and lifting. The private investigator who
filmed plaintiff testified that plaintiff worked continuously for
over four hours, showing no signs of physical distress. Evidence
showed that, during October and November 1997, plaintiff worked at
the logging operation on approximately twelve occasions for four to
eight hours a day. Plaintiff received about two hundred dollars
for his work from Mr. Doug Williams, who claimed that the money was
reimbursement for plaintiff's expenses. Further videotaped
surveillance shows plaintiff loading and unloading various items
from the bed of his pickup truck, climbing ladders, shoveling sand
or dirt, carrying piles of clothing and large boxes, and repairing
automobiles. This evidence directly contradicts plaintiff's
assertion in his deposition that he could not crouch down, kneel,
squat or stand for more than twenty minutes.
Defendants presented numerous witnesses who testified as to
plaintiff's physical capabilities. Ken Whapham, a private
investigator, testified that in July and August 1994, he observed
plaintiff working at an automobile service station, repairing a
Mustang. Plaintiff had "grease and dirt on his arms" and at the
time was wearing a "dark blue . . . shirt and pants that appeared
to be a local work type uniform[.]" Mike Volin, a manager with
Lowe's, testified that on 9 April 1996, he observed plaintiff "in
the back of a small light tan pickup truck bending down lifting
. . . cinder blocks that you build - to build a foundation toanother gentleman that was outside of the truck." Mr. Volin
watched plaintiff unload the bed of the pickup truck for
approximately fifteen minutes. R. Dee Mitchell, an employee at
Lowe's, testified that, on 24 October 1995, he drove by a garage on
Union Methodist Church Road and observed plaintiff and another man
"carrying what appeared to be a complete rear-end [assembly of an
automobile]." Mr. Mitchell further testified that he observed
plaintiff squatting, carrying heavy objects, and working on
vehicles at the same garage on numerous occasions. Two other
witnesses testified that they observed plaintiff walking in a
smooth, natural manner until plaintiff became aware of their
presence, whereupon plaintiff began noticeably limping.
Defendants also presented evidence of their efforts to assist
plaintiff in locating employment. When Mr. McIntosh, Lowe's Human
Resource Manager, suggested "that GAB would probably want to assign
a rehab nurse to assist [plaintiff] in looking for employment[,]"
plaintiff replied that "they had done that and for over a year[,]"
and that "[i]t didn't do any good, that when [plaintiff] talked to
employers and told them about his knee . . . no one wanted to give
him a job." Mr. McIntosh also testified that plaintiff
consistently told him that "he was unable to do anything based on
his knee problem[,]" and that plaintiff's attitude was one of
"permanent disability." Because of plaintiff's statements, Mr.
McIntosh concluded that Lowe's did not have any work for plaintiff.
Moreover, when asked what sort of vocational training he might find
helpful, plaintiff stated that "I can't think of anything, because
I don't--I've never been one to want to stay inside." Ray Young, an investigator with the Fraud Division of
the
Industrial Commission, testified that the Commission had received
a fraud complaint regarding plaintiff. Pursuant to the complaint,
the Commission conducted an investigation and presented the results
to a screening committee, which subsequently referred the case to
the District Attorney for prosecution. District Attorney Tom
Horner authorized criminal prosecution against plaintiff for
fraudulently obtaining Workers' Compensation benefits and for
perjury, crimes for which plaintiff was indicted. Plaintiff
ultimately pled no contest to the charges, and a prayer for
judgment was entered.
Like the plaintiffs in Stone and Harrington I, plaintiff in
the instant case suffered compensable injuries for which he was
compensated. Like Mr. Harrington, Mr. Johnson was released by his
physician to work, even though he sustained a permanent partial
impairment to his knee. Like Mr. Stone, Mr. Johnson was filmed
engaging in strenuous physical activities. Further, like the Stone
and Harrington I plaintiffs, the Industrial Commission specifically
found that "[p]laintiff's testimony regarding his knee condition is
not credible."
We hold that the Commission's findings adequately established
that the presumption existing in favor of plaintiff was rebutted by
defendants through medical and other evidence. Where there is
overwhelming evidence of fraud by the employee regarding both the
physical limitations of his injury and his capacity to engage in
work-related activities, as well as strong evidence that theemployee is actually working on a regular basis, such evidence
rebuts the presumption of continuing disability arising from the
employee's original injury. See In re Stone, 346 N.C. at 157, 484
S.E.2d at 367; Harrington I, 128 N.C. App. at 500, 495 S.E.2d at
380 (Walker, J., dissenting). Moreover, we determine that the
Commission did not abuse its discretion in awarding defendants
attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1 (1999).
Because we find that the Industrial Commission's findings of fact
and conclusions of law were supported by competent evidence, the
opinion and award by the Commission, including the award of
attorney's fees, is hereby
Affirmed.
Judge GREENE concurs.
Judge HUDSON dissents.
NO. COA00-124
NORTH CAROLINA COURT OF APPEALS
Filed: 15 May 2001
RICKY JOHNSON,
Employee,
Plaintiff,
v
.
&
nbsp;North Carolina
&
nbsp; Industrial Commission
&
nbsp; I.C. No. 319795
LOWE'S COMPANIES, INC.,
Employer,
SELF-INSURED
(GAB ROBINS, Servicing Agent),
Defendant.
HUDSON, Judge, dissenting.
The majority, relying upon In re Stone v. G & G Builders, 346
N.C. 154, 484 S.E.2d 365 (1997), and Harrington v. Adams-Robinson
Enterprises, 128 N.C. App. 496, 495 S.E.2d 377, reversed, 349 N.C.
218, 504 S.E.2d 786 (1998), concludes that “strong evidence of
fraud, coupled with evidence that plaintiff-employee is, in fact,
working, is enough to rebut the presumption of plaintiff's
continuing disability.” I disagree with this narrow interpretation
of the holdings in Stone and Harrington, and I further believe that
defendants here have not come forward with the necessary proof to
overcome the presumption of plaintiff's ongoing disability arising
from the approval of a Form 21.
In my opinion, the Supreme Court in Stone and Harrington
determined that the employers in those cases had rebutted the
presumption of disability as a result of a number of differentfactors, and not simply based on evidence of fraud coupled with
evidence that the plaintiff was capable of engaging in various
physical tasks. I believe that both Stone and Harrington can be
distinguished from the present case on the grounds that those cases
involved at least four significant factors which are not present
here. I further believe that the absence of these factors in this
case warrants the determination that the presumption of disability
has not been rebutted here.
First, in both Stone and Harrington there was evidence, and
the Industrial Commission found, that the plaintiffs had either no
permanent physical impairment at all, or, at most, minimal physical
impairment. See Stone, 346 N.C. at 155, 484 S.E.2d at 366 (no
permanent partial disability); Harrington, 128 N.C. App. at 497,
495 S.E.2d at 378 (5% permanent partial impairment). Here, on the
other hand, plaintiff had knee surgery twice, and was finally
released with a 30% permanent impairment rating to the right lower
extremity “based upon his problem with severe chondromalacia of his
medial femoral condyle and absent medial meniscus as well as his
lack of motion.” Second, in neither Stone nor Harrington was the
plaintiff under any work restrictions other than general lifting
restrictions which applied to all employees. See Stone, 346 N.C.
at 155, 484 S.E.2d at 366-67 (plaintiff could return to regular
employment with “routine weight lifting guidelines”); Harrington,
128 N.C. App. at 500, 495 S.E.2d at 380 (plaintiff released to
return to unrestricted work). Here, on the contrary, plaintiff wasreleased from treatment with permanent restrictions of “no b
ending,
stooping, climbing and no lifting over 30 lb,” and was undergoing
ongoing medical treatment and supervision.
Third, and most significantly, the plaintiffs in both Stone
and Harrington were found to have been released to return to any
job, specifically including their original jobs, and I believe such
a finding constitutes some evidence of a particular job being
available to the plaintiff. See Stone, 156 N.C. at 156, 366 S.E.2d
at 367 (“plaintiff has been capable of returning to work at his
regular job with [G & G Builders]”); Harrington, 128 N.C. App. at
500, 378 S.E.2d at 380 (“plaintiff has remained capable of
returning to unrestricted work, including his regular carpenter's
job”). Here, there was no such evidence, and, in fact, there was
significant evidence to the contrary. The record reflects that
plaintiff's doctor, instead of releasing plaintiff to return to his
regular job, or any specific job, recommended that “he is an
excellent candidate for vocational rehabilitation to retrain him in
a sedentary type of position.” Furthermore, the record contains a
notation made by defendants on plaintiff's restriction form stating
“no light duty available.” Although the doctor later noted that “I
think he can get a job working on cars,” there was no evidence and
no finding that such a job was available, nor that plaintiff would
be hired at such a job, nor any finding regarding any potential
wages that plaintiff could earn if he were so hired.
Fourth, in both Stone and Harrington there was medical andother evidence that although jobs were avai
lable to the plaintiffs,
the plaintiffs did not make any efforts to return to work after
their injuries. See Stone, 346 N.C. at 156, 484 S.E.2d at 367
(“plaintiff has not made a reasonable effort under the
circumstances to obtain gainful employment”); Harrington, 128 N.C.
App. at 500, 495 S.E.2d at 380 (although plaintiff was released to
unrestricted work, he did not apply for work because he claimed he
was incapable of heavy work and light work did not pay enough).
Here, there was no evidence that any specific job was available to
plaintiff, or that he failed to make efforts to return to work.
Although the Commission found as fact that plaintiff had failed to
cooperate with job-seeking efforts provided by defendants, the
record, in fact, reveals just the opposite. Defendants hired a
rehabilitation specialist to work with plaintiff until November
1997. The evidence established that, for a period of several
years, the rehabilitation counselor worked with plaintiff only to
coordinate medical treatment and to help him regain functional
status. This work continued until the “Closure Report,” dated 12
November 1997. In that report and in her testimony, the
rehabilitation specialist specifically noted that defendants never
requested that she assist plaintiff with any job placement efforts.
Thus, the counseling was in the nature of medical rehabilitation
rather than vocational. See N.C. Indus. Comm'n Rules for
Rehabilitation Professionals IIID and E, 2001 Ann. R. N.C. 810.
There was no evidence that defendants made any effort to helpplaintiff obtain work suitable for him in light of his injuries,
age, education and job skills.
(See footnote 1)
It is important to note here that any determination of the
adequacy of defendants' evidence to rebut the presumption of
disability is difficult because there is no finding at all of what
plaintiff's regular job entailed, other than the stipulation that
he worked for defendants and earned $211.45 per week. The
testimony from defendants' own Human Resources manager, Mitchell
MacIntosh, was that plaintiff was terminated “because of company
policy after he was unable to return to work pursuant to doctor's
orders within twelve months after he was injured,” that he did not
have a position that “Mr. Johnson could perform taking into
consideration both his physical limitations as well as his academic
or educational skills,” and that he “didn't see an appropriate job
that retraining would accomplish [plaintiff's] return to work.”
Thus, defendants have simply failed to set forth any evidence that
plaintiff had regained any wage-earning capacity at all. I
believe, therefore, that the distinctions between this case and
Stone and Harrington, especially in light of the additional cases
discussed below, support the conclusion that defendants here have
failed to present sufficient evidence to overcome plaintiff's
presumption of ongoing disability. I do not believe that therecord supports any finding that plaintiff had regained wage-
earning capacity, as that concept is defined by the Supreme Court
of North Carolina.
I also disagree with the general proposition that a defendant
may rebut the presumption of disability by simply showing that the
plaintiff is capable of performing a few potentially job-related
activities, and that there may be some fraud on the plaintiff's
part with regard to the extent of his injuries.
(See footnote 2)
The majority
takes the position that such evidence is generally sufficient to
rebut a presumption of disability, even in the absence of any
evidence that there is a specific, identifiable job that the
plaintiff is able to perform. This interpretation is inconsistent
with Supreme Court precedent by which we are bound, and, indeed,
with the most basic underlying principles of the workers'
compensation scheme.
The Supreme Court and this Court alike have frequently noted
that the statutory system of workers' compensation payments is a
wage-replacement scheme, and is a limited and exclusive remedy.
See Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d
336 (1986). It compensates an injured or ill worker only forpermanent injury or loss of wage-earning capacity, whichever is the
more favorable remedy for the worker. See id.; Gupton v. Builders
Transport, 320 N.C. 38, 357 S.E.2d 674 (1987). Furthermore, it is
well-established that the Workers' Compensation Act is to be
“liberally construed to benefit the employee.” Rorie v. Holly
Farms, 306 N.C. 706, 709, 295 S.E.2d 458, 461 (1982); see also
Barnhardt v. Cab Co., 266 N.C. 419, 427, 146 S.E.2d 479, 484
(1966).
In Saums v. Raleigh Community Hospital, 346 N.C. 760, 487
S.E.2d 746 (1998), the Supreme Court explained at length the
concepts which come into play in the determination of whether a
defendant-employer has presented evidence sufficient to rebut a
presumption of disability arising from a Form 21 agreement. 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:
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 within
plaintiff'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 notaccurately 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).
The evidence presented in the case before the Court is not
nearly as strong as the evidence presented in Saums, in that
defendants here presented no evidence at all that any job existed
for plaintiff, let alone one that he could have obtained and that
accurately reflected his wage-earning capacity in the competitive
job market. Evidence, such as the videotapes presented by
defendants in this case, tending to show that a plaintiff onoccasion may be capable of performing particular tasks which
sometimes might be included among the duties of an unspecified job,
even taken together with evidence that a plaintiff may have been
less than candid about the extent of his symptoms, does not satisfy
the very clear requirements of Saums. Such evidence does not
establish wage-earning capacity, and is therefore insufficient to
overcome the presumption of ongoing disability.
I would reverse the order of the Commission to the extent the
Commission found that defendants had rebutted the presumption of
ongoing disability. I would further hold that plaintiff had
reasonable ground to defend against defendants' Form 24 Application
to Terminate Benefits, and that, therefore, the Commission abused
its discretion in awarding attorney's fees to defendants pursuant
to N.C.G.S. § 97-88.1 (1999). For these reasons, I dissent.
Footnote: 1
