CLAUDE V. MEDLIN, Employee
WEAVER COOKE CONSTRUCTION, LLC, Employer, KEY RISK INSURANCE COMPANY, Carrier
Heard in the Supreme Court February 18, 2014
Oxner, Thomas Permar, by Michael G. Soto, for plaintiff-appellant.
Brewer Law Firm, P.A., by Joy H. Brewer and Ginny P. Lanier, for defendant-appellees.
Sumwalt Law Firm, by Vernon Sumwalt, for North Carolina Advocates for Justice, amicus curiae.
Poisson, Poisson & Bower, PLLC, by Elizabeth Stewart Poisson, for North Carolina Advocates for Justice.
Young Moore and Henderson P.A., by Angela Farag Craddock, for North Carolina Association of Defense Attorneys, North Carolina Association of Self-Insurers, and North Carolina Chamber, amici curiae.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals,
__ N.C.App. __, 748 S.E.2d 343 (2013), affirming an opinion and award filed on 19 October 2012 by the N.C. Industrial Commision. No. 128568.
Plaintiff Claude Medlin appealed the opinion and award of the North Carolina Industrial Commission terminating his temporary disability payments and awarding defendants Weaver Cooke Construction, LLC (" Weaver" ) and Key Risk Insurance Company a credit for all disability payments made to Medlin after 22 December 2010.
__ N.C.App. __, __, 748 S.E.2d 343, 344 (2013). On appeal, the Court of Appeals affirmed the Commission in a divided opinion. The majority held that the Commission's binding findings of fact show that plaintiff's inability to find work was not due to his injury, but rather to large-scale economic factors. Id. at, 748 S.E.2d at 347. Because we agree that plaintiff has not shown that his inability to earn the same wages as before his injury resulted from his work-related injury, we affirm.
Plaintiff graduated from North Carolina State University in 1974 with a degree in civil engineering. Since then he has worked in the commercial construction industry in several different capacities, including as a project engineer, supervisor, project manager, and estimator. In April of 2006, defendant Weaver hired plaintiff and he worked for the company as both a project manager and an estimator. Id. at, 748 S.E.2d at 344. As an estimator, plaintiff helped Weaver obtain construction jobs by pricing the estimate to ensure that those jobs could be completed under budget; this job was sedentary, but required that plaintiff be able to lift and carry up to ten pounds occasionally. As a project manager, plaintiff actually managed the construction projects; this job was at least slightly more physically demanding than the estimator position.
Plaintiff injured his right shoulder in May 2008 while helping to move a large credenza, then exacerbated the injury later that day when moving a fifty pound box of files. See id. at, 748 S.E.2d at 344. After this injury, he continued to work for Weaver until 21 November 2008, when he was terminated as part of widespread layoffs both within the company, and within the construction industry as a whole. See id. at, 748 S.E.2d at 344. The reason given for plaintiff's layoff was " reduction of staff due to lack of work." Id. at, 748 S.E.2d at 344. On 22 December 2008, after plaintiff was laid off, Weaver accepted his injury as compensable and submitted Industrial Commission Form 60. Id. at, 748 S.E.2d at 344. In January 2009, plaintiff began to receive unemployment benefits from defendants; the next month, he began to receive temporary total disability payments as well. Id. at, 748 S.E.2d at 344-45. These overlapping benefits continued until late March 2011. Id. at, 748 S.E.2d at 345.
Starting in late 2008, plaintiff began medical treatment for his shoulder, primarily at the hands of Raymond Carroll, M.D., and Kevin Speer, M.D. See id. at, 748 S.E.2d at 345. Dr. Carroll performed surgery on plaintiff's shoulder on 10 February 2009, and plaintiff began physical therapy. Id. at, 748 S.E.2d at 345. However, plaintiff's shoulder pain worsened until he was discharged from therapy in April 2009. Id. at, 748 S.E.2d at 345. An MRI conducted late in 2009 showed that plaintiff
may have suffered a superior labral tear to his shoulder; but because this tear was not present at the time of the surgery performed earlier that year, Dr. Carroll concluded that it had not been caused by the May 2008 work injury. Both Dr. Carroll and Dr. Speer eventually placed plaintiff at maximum medical improvement, though plaintiff was assigned permanent work restrictions preventing him from lifting weights greater than ten pounds, climbing ladders, or performing repetitive overhead activities. Id. at, 748 S.E.2d at 345.
During the period following his layoff, plaintiff sought employment within the construction industry. Although he estimated that he made hundreds of job inquiries, plaintiff was unable to find equivalent work in that industry. Id. at, 748 S.E.2d at 345. Eventually, on 22 December 2010, defendants filed an " Application to Terminate Payment of Compensation," alleging that plaintiff could no longer show that he was disabled. Id. at, 748 S.E.2d at 345. More specifically, defendants argued that plaintiff could not show that he was legally disabled because his inability to find another position as an estimator was due to the economic downturn, rather than to any physical limitations. Id. at, 748 S.E.2d at 345.
Deputy Commissioner Philip A. Baddour, III heard this matter on 17 May 2011, and subsequently received the depositions of Dr. Speer, Dr. Carroll, Sandy J. Kimmel, D.O., and vocational case manager Gregory Henderson. The Deputy Commissioner denied plaintiff's claim for disability compensation after 22 December 2010, and awarded defendants a credit for all unemployment benefits plaintiff received during the time he also received disability compensation. Plaintiff appealed to the Full Commission.
The Full Commission heard the case on 4 September 2012. The Commission considered the parties' stipulations, several exhibits, and the testimony of several witnesses, including plaintiff, Dr. Carroll, Dr. Speer, Dr. Kimmel, and Mr. Henderson. Based on that ...