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Johnson v. Southern Tire Sales and Service, Inc.

Court of Appeals of North Carolina

May 6, 2014

WILLIE B. JOHNSON, Employee, Plaintiff,
v.
SOUTHERN TIRE SALES AND SERVICE, INC., Employer, and N.C. INSURANCE GUARANTY ASSOCIATION, Carrier, Defendants

Heard in the Court of Appeals February 5, 2014

Counsel Amended May 15, 2014.

Page 20

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

North Carolina Industrial Commission. I.C. No. 689047.

Oxner Thomas & Permar, PLLC, Raleigh, NC, by Mr. John R. Landry, Jr., Primary Attorney, Attorney at Law, for Plaintiff-Appellant - Johnson, Willie B.

Young Moore and Henderson, P.A., Raleigh, NC, by Mr. Joe E. Austin, Jr., Primary Attorney, Attorney at Law, for Appellee - Southern Tire Sales And Service, Inc., et al.

HUNTER, Robert C., Judge. Judges GEER and McCULLOUGH concur.

OPINION

Page 21

Appeal by plaintiff from opinion and award entered 21 June 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 5 February 2014.

HUNTER, Robert C., Judge.

Willie B. Johnson (" plaintiff" ) appeals from an opinion and award entered by the Full Commission of the North Carolina Industrial Commission (" the Commission" ) denying his request to reinstate vocational rehabilitation efforts and ruling that plaintiff is time-barred from recovering any further compensation. On appeal, plaintiff argues that: (1) he offered proof of his ongoing disability as the result of his compensable injury; (2) he has offered proof of his willingness to comply with vocational rehabilitation efforts; and (3) the Full Commission applied erroneous legal standards in its opinion and award.

After careful review, we affirm the Full Commission's opinion and award.

Background

The facts of this case have previously been addressed at length, twice by this Court and once by our Supreme Court. See Johnson v. S. Tire Sales & Serv., 152 N.C.App. 323, 567 S.E.2d 773 (2002) (" Johnson I " ), rev'd, 358 N.C. 701, 599 S.E.2d 508 (2004) (" Johnson II " ); Johnson v. S. Tire Sales & Serv., No. COA10-770, 2011 WL 2848842 (N.C. Ct. App. July 19, 2011) (" Johnson III " ). We need not restate the full factual history here. The facts relevant to this appeal are as follows: Plaintiff was previously employed by Southern Tire Sales and Service, Inc. (" Southern Tire" ) as a shop mechanic, and he sustained a work-related

Page 22

back injury on 24 October 1996. Southern Tire was insured by Casualty Reciprocal Exchange at the time of plaintiff's injury but is now insured by North Carolina Insurance Guaranty Association (with Southern Tire, " defendants" ). Defendants filed a Form 63 and paid plaintiff medical and indemnity compensation. Defendants later accepted liability for plaintiff's injury by failing to contest the compensability of plaintiff's claim or their liability therefor within the statutory period.

As part of the compensation, defendants provided vocational rehabilitation services to assist plaintiff in locating suitable employment. Ronald Alford (" Mr. Alford" ), a Certified Rehabilitation Counselor, arranged multiple job interviews for plaintiff and registered him for the Johnston County Industries program, which provided potential jobs that comported with plaintiff's work restrictions. However, plaintiff refused to participate in the Johnston County Industries program and either failed ...


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