Opinion
No. COA02-1072
Filed 20 May 2003
1. Workers' Compensation — return to work — no more presumption of disability — failure to perform as required
The Industrial Commission did not err in a workers' compensation action by concluding that plaintiff constructively refused suitable employment when she did not perform as required after returning from carpel tunnel surgery. The employer provided competent evidence that plaintiff's failure to perform the task she was given was not related to her prior compensable injury, the burden shifted to plaintiff, and she did not present evidence of disability as a result of her injury. All presumption of disability ended when plaintiff returned to work.
2. Workers' Compensation — average weekly wage — Form 21
The Industrial Commission did not err in a workers' compensation action in finding plaintiff's average weekly wage to be as listed on a Form 21. The documents cited by the employer as being contrary to that amount did not render the Form 21 incompetent.
Judge WYNN dissenting.
Appeal by plaintiff and defendant from Opinion and Award of the North Carolina Industrial Commission filed 18 April 2002. Heard in the Court of Appeals 22 April 2003.
H. Bright Lindler for plaintiff. Cranfill, Sumner Hartzog, L.L.P., by Kirk D. Kuhns and Jaye E. Bingham, for defendant.
Alberta McRae ("plaintiff") appealed from the opinion and award of the North Carolina Industrial Commission ("Commission") ordering Toastmaster, Inc. ("employer") through its servicing agent Corporate Claims Management to pay plaintiff $166.67 per week for 16 weeks, medical expenses, and plaintiff's attorney fees, expert fee and costs. Employer cross-appeals. We affirm.
I. Background
In October 1996, plaintiff commenced work for employer as an assembler. During her first six months on the job, she peeled Uniform Product Code labels off of a roll and placed them onto boxes traveling on a conveyor. Employer transferred plaintiff to "dialing." Dialing required plaintiff to insert the movement into the back of a clock, turn the clock over, and install the hour and minute hands on the front of the clock. The production rate for "dialing" was one hundred twenty-five clocks per hour.
In 1997, plaintiff experienced pain and numbness in her right hand. In January 1998, plaintiff visited the plant nurse, who referred her to Occupational Health at Scotland Memorial Hospital. Plaintiff was treated and restricted to light-duty work until February 17. Plaintiff's symptoms persisted and she obtained permission to see Dr. Brenner, an orthopaedic surgeon.
In June of 1998, plaintiff was referred to Dr. Brenner for the pain in her right hand. Plaintiff was diagnosed with carpal tunnel syndrome and was injected with medication. Plaintiff was restricted to light work, and her employer provided plaintiff other tasks in clock assembly. On 21 July 1998, plaintiff returned to Dr. Brenner and reported some improvement in her hand. Plaintiff was allowed to increase her activities but ordered not to return to dialing. On 24 September 1998, plaintiff returned to Dr. Brenner with further problems in both hands. Plaintiff's left wrist was injected, and nerve conduction studies showed plaintiff had bilateral carpal tunnel syndrome.
Dr. Brenner performed surgery on plaintiff's right carpal tunnel on 26 October 1998 and on plaintiff's left carpal tunnel on 30 November 1998. Dr. Brenner released plaintiff to light-duty work on 21 December 1998 and advised that plaintiff could return to full duty on an "as-tolerated" basis. Employer provided light-duty work to plaintiff for some time, but returned her to the dialing position. On 13 April 1999, plaintiff returned to Dr. Brenner because her hands were swelling and hurting while dialing. Dr. Brenner advised plaintiff to avoid dialing permanently.
Plaintiff returned to her original position as a UPC labeler. Plaintiff was required to place a sticker on one out of four boxes, for a total of 1,000 boxes a day. Plaintiff failed to label the boxes as required. Plaintiff was reprimanded and did not explain why she missed the boxes. Plaintiff testified that she experienced some difficulty with her hands while performing the labeling job.
On 5 May 1999, plaintiff was terminated from her job with defendant-employer. Employer admitted liability for benefits for plaintiff's carpal tunnel syndrome and paid compensation to plaintiff for temporary total disability while plaintiff was out of work for the surgery and the plaintiff's medical bills. Employer has not paid plaintiff further sums since her termination.
The Commission found that plaintiff's termination was a direct result of poor job performance and that she constructively refused suitable employment offered by her employer after the surgery. The Commission found the labeling job to be suitable for plaintiff. Plaintiff presented no evidence of disability as a result of her injury. The Commission found that plaintiff was not entitled to disability benefits after termination of her employment. Plaintiff had an average weekly wage of $250.00, according to the Form 21. This wage yielded plaintiff a compensation rate of $166.67 per week for 16 weeks based upon an impairment rating of 4% to each hand. Employer was to provide all medical compensation arising from the injury as well as plaintiff's attorney fees and costs. Commissioner Thomas Bolch dissented from the award of the Commission because he found as fact that plaintiff's inability to perform the labeling job was caused by her occupational disease of carpal tunnel syndrome. Plaintiff appeals.
II. Issues
The issues are (1) whether the Commission erred in relying upon Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996) in holding that plaintiff "was terminated for misconduct and she thereby constructively refused suitable employment" and (2) whether the Commission erred in determining plaintiff's weekly wage and compensation rate.
III. Standard of Review
"[A]ppellate courts reviewing Commission decisions are limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Conclusions of law are reviewed de novo. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. review denied, 347 N.C. 671, 500 S.E.2d 86 (1998).
IV. Seagraves v. Austin Co. of Greensboro
Plaintiff contends that the Commission erred in applying Seagraves to the facts at bar. The Commission found as fact that the UPC labeler position was a suitable job for the plaintiff. The Commission based this finding upon evidence that plaintiff had performed that job satisfactorily prior to working as a dialer and that plaintiff did not seek mental or physical help in undertaking this job after the surgery. Competent evidence supports the Commission's finding that the labeler position was suitable.
The Commission further found that plaintiff was capable of labeling and that plaintiff's failure to perform the labeler position constituted a failure to accept a suitable position offered by the employer. The Commission concluded under the law of Seagraves that plaintiff's misconduct in failing to perform the task was a constructive refusal of employment.
Competent evidence in the record supports the Commission's finding that plaintiff was capable to perform as a labeler. The issue becomes whether plaintiff's poor performance is misconduct under Seagraves.
To determine whether an employee's misconduct amounts to a constructive refusal to perform work, justifying termination under N.C.G.S. § 97-32, this Court in Seagraves stated
the employer must first show that the employee was terminated for misconduct or fault, unrelated to the compensable injury, for which a nondisabled employee would ordinarily have been terminated. If the employer makes such a showing, the employee's misconduct will be deemed to constitute a constructive refusal to perform the work provided and consequent forfeiture of benefits for lost earnings, unless the employee is then able to show that his or her inability to find or hold other employment of any kind, or other employment at a wage comparable to that earned prior to the injury, is due to the work-related disability.
Seagraves, 123 N.C. App. at 234, 472 S.E.2d at 401.
The employee in Seagraves briefly exposed her buttocks to other female workers and was terminated for gross misconduct while working. Id. at 229, 472 S.E.2d at 398. Plaintiff, at bar, failed to perform her duties as required. She was terminated for what she failed to do rather than for an affirmative act. Although the dissenting opinion characterizes plaintiff's failure to perform her job as negligent behavior, competent evidence in the record supports a finding of misconduct under Seagraves.
Employer provided competent evidence to show that plaintiff's failure to perform the labeling task was not related to her prior compensable injury. A worker's failure to perform required tasks for employer results in reprimands and eventually termination. There is no indication that employer treated plaintiff's misconduct differently than that of other employees in deciding to terminate her employment. The burden shifted to the plaintiff to show that "her inability to find or hold other employment of any kind, or other employment at a wage comparable to that earned prior to the injury, is due to the work-related disability." Id. at 234, 472 S.E.2d at 401.
The Commission found as fact that plaintiff failed to present any evidence of disability as a result of her injury and that all presumption of disability ended when plaintiff returned to employment. We affirm the Commission's conclusion that plaintiff constructively refused suitable employment.
V. Average Weekly Wage
Employer contends that the Commission erred in finding plaintiff's average weekly wage to be $250.00 as listed on the Form 21. Employer argues that this finding is not supported by any competent evidence in the record because all competent evidence in the record is contrary. Employer submitted time charts and wage records that plaintiff's average weekly wage was $213.45 to yield a compensation rate of $142.30. Although this evidence could form the basis for a Form 22 filing, one was not submitted.
These documents do not render incompetent the Form 21 filed with the Commission which listed the average weekly wage at $250.00. "[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." Deese, 352 N.C. at 115, 530 S.E.2d at 552-53. Employer's assignment of error is overruled.
Affirmed.
Judge STEELMAN concurs.
Judge WYNN dissents.