The opinion of the court was delivered by: Lewis, Judge.
Appeal by defendants from opinion and award entered 10 December 1996 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 November 1997.
On 23 August 1993, plaintiff sustained an injury by accident while working as a lineman for defendant Pee Dee Electrical Membership Corporation ("Pee Dee"). The injury arose out of and in the course of his employment with Pee Dee. Between 23 August and 15 November 1993, plaintiff was unable to work in any capacity but continued to receive his regular wages pursuant to company policy.
On 15 November 1993, plaintiff resumed working for Pee Dee in a light-duty position that conformed with his work restrictions. On 12 January 1994, plaintiff was convicted of indecent exposure in district court. Two days later he was fired because of his conviction. He was never rehired and defendants refused to pay any further workers' compensation. Plaintiff appealed his conviction to the superior court and his case was dismissed by the district attorney on 21 March 1994.
On 27 July 1994, plaintiff filed a Form 33, "Request That Claim Be Assigned for Hearing," with the North Carolina Industrial Commission. On 13 October 1994, defendants filed a Form 33R, "Response to Request That Claim Be Assigned for Hearing." See N.C.I.C. Workers' Comp. Rule 603. In the Form 33R, defendants made the following statement:
In response to the request for hearing filed we have been unable to agree to the benefits claimed because plaintiff is not entitled to any further temporary total disability as his inability to work is unrelated to his injury by accident and was caused by an arrest for indecent exposure.
The beginning of this statement was preprinted on the Form 33R; the underlined information was provided by defendants.
A deputy commissioner heard the case on 2 March 1995 and filed his opinion and award on 23 January 1996. He concluded that although plaintiff was entitled to compensation for permanent partial disability, plaintiff was not entitled to any temporary total disability benefits after 14 January 1994. The deputy commissioner reasoned that plaintiff had "constructively refused to accept suitable employment" by engaging in the conduct that led to his conviction and ultimately to his discharge from work.
On appeal, the Full Commission reversed the deputy commissioner and awarded plaintiff temporary total disability benefits from 14 January 1994 and continuing. The issue of permanent partial disability was held open for determination at a later date. The Full Commission believed that plaintiff had not constructively refused employment. Defendants appeal.
We note that plaintiff died on 2 July 1997. On 30 March 1998, the administrators for plaintiff's estate, Colon R. Williams, Jr. and Betty Williams, were substituted for the deceased plaintiff as parties to this appeal. See N.C.R. App. P. 38.
Defendants base their constructive refusal defense on General Statute section 97-32 and on this Court's opinion in Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996). Section 97-32 provides,
If 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 of the Industrial Commission such refusal was justified.
N.C. Gen. Stat. § 97-32 (1991). The Seagraves Court held that just as an employee who actually refuses suitable employment is barred from receiving benefits by G.S. 97-32, so too is an employee who constructively refuses employment. Id. at 233-34, 472 S.E.2d at 401. Defendants argue that plaintiff constructively refused employment by engaging in the misconduct that led to his criminal conviction and ultimately to his dismissal from work.
To establish that an employee has constructively refused employment, the employer must 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 or lost earnings, unless the employee is then able to show that his or her inability to find or hold other employment of any ...