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Dixon v. City of Durham

February 03, 1998

DEBORAH K. DIXON, EMPLOYEE, PLAINTIFF APPELLANT,
v.
CITY OF DURHAM, SELF-INSURED EMPLOYER, DEFENDANT APPELLEE.



Appeal by plaintiff from Opinion and Award entered 29 May 1996 by the Full Industrial Commission. Heard in the Court of Appeals 17 November 1997.

Plaintiff began work as a police officer for the City of Durham in 1989. In April 1993, plaintiff was on duty as a police officer II when she responded to an emergency call. During the course of that assignment, plaintiff suffered a serious cut by broken glass to her right wrist. After extended treatment, including surgery, physicians determined that plaintiff has a 20 percent permanent partial disability of her right hand. Because plaintiff's right hand is her dominant hand, she can no longer safely perform her duties as a police officer II: She cannot handle a gun safely and could not restrain suspects or otherwise adequately protect herself and others in the dangerous situations that are necessarily a part of the job of a police officer II.

Defendant notified plaintiff by letter 28 July 1994 that it was unable to place her in a position consistent with her physical limitations. Defendant gave plaintiff the options of resignation, medical disability retirement or termination due to inability to perform her job. Plaintiff chose medical disability retirement. At the time of her retirement, she had been earning an average weekly wage of $539.63.

After her retirement, plaintiff worked for another employer for a short time at an average weekly wage of $146.25. She left that job in fall 1994 to attend North Carolina State University, where she had been admitted to the School of Design.

In December 1994, defendant offered plaintiff a position as water meter-reader trainee at the same dollar salary as her police officer II salary, but without a similar opportunity for income advancement. Plaintiff rejected the position and sought compensation for her permanent partial disability.

Plaintiff's case was heard by a Deputy Commissioner of the North Carolina Industrial Commission. The Deputy Commissioner found in November 1995 that plaintiff's refusal to accept defendant's offer of employment as a water meter-reader trainee was unjustified and barred plaintiff, pursuant to N.C. Gen. Stat. § 97-32, from receiving additional disability compensation. Plaintiff appealed to the Full Commission.

The Full Commission declined to receive further evidence, made its own findings of fact and Conclusions of law and entered an Opinion and Award in May 1996, upholding the Opinion and Award of the Deputy Commissioner. Plaintiff appeals.

Edelstein and Payne, by M. Travis Payne, for the plaintiff appellant.

Brooks, Stevens & Pope, P.A., by Kathlyn C. Hobbs and Patricia Wilson Medynski, for defendant appellee.

ARNOLD, Chief Judge.

"The findings of the Industrial Commission are conclusive on appeal when supported by competent evidence even though there be evidence to support a contrary finding. However, the Commission's legal Conclusions are reviewable by the appellate courts." Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982) (citations omitted).

When an injured employee seeks compensation under the Workers' Compensation Act, she must show that she was incapable after her injury of earning the same wages she had earned before the injury. Id., 290 S.E.2d at 683. She may meet her burden in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of pre-existing conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he 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). Defendant argues forcefully that plaintiff failed to meet any one of the four means of proving disability set out in Russell. However, the Industrial Commission found as fact that plaintiff obtained post-injury employment at an average weekly wage of $146.25. Finding nothing in the record before us to undermine the Commission's finding, we conclude that plaintiff met her burden of proof under the fourth option set out in Russell.

Plaintiff assigns error to the Commission's Conclusion of law that plaintiff's refusal of the water meter-reader trainee position was not justified under G.S. § 97-32 and that it barred her from receiving compensation for her permanent partial disability.

N.C. Gen. Stat. ยง 97-32 provides that "f an injured employee refuses employment procured for him suitable to his capacity he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission ...


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