in the Court of Appeals 30 October 2019.
by Plaintiff from an opinion and award entered 25 January
2019 by the North Carolina Industrial Commission. I.C. No.
Sellers, Ayers, Dortch & Lyons, PA, by Christian R.
Ayers, and John F. Ayers, III, for Plaintiff.
Brotherton, Ford, Berry & Weaver, PLLC, by Demetrius
Worley Berry, and Daniel J. Burke, for Defendant.
Griffin ("Plaintiff") appeals from the opinion and
award of the North Carolina Industrial Commission (the
"Commission") denying his request for disability
compensation from Absolute Fire Control and its insurance
carriers, Everest National Insurance Company and Gallagher
Bassett Services (collectively "Defendants"). On
appeal, Plaintiff argues the Commission erred in concluding
he was not disabled and that his post-injury job was suitable
employment. We affirm in part. We reverse in part and remand
for additional findings.
Factual and Procedural Background
worked for Defendant from 4 June 2007 to 23 October 2014 as a
pipe fitter in Charlotte, North Carolina. Plaintiff's job
responsibilities included installing and hanging sprinkler
pipes and operating power machines and grease fittings.
Plaintiff worked ten hours a day, five days a week, and
earned between $18 and $20 dollars per hour. Plaintiff
testified that pipefitters are expected to be able to lift
the pipes they are working with and that pipes could weigh
anywhere from 25 to 300 pounds.
October 2014, while Plaintiff was operating a scissor lift at
work, the machine malfunctioned and threw Plaintiff into the
rails of the lift, which caused injuries to his upper left
back and ribs. Plaintiff returned to work one month after his
injuries but was restricted from lifting anything over 20
pounds, standing or walking over 30 minutes, and driving
while taking hydrocodone. Plaintiff's pre-injury job
duties were outside of his assigned restrictions, so
Defendant offered Plaintiff work in the fabrication shop,
which Plaintiff accepted. In the fabrication shop, Plaintiff
cut rods, drove a truck, made deliveries, and boxed up
materials needed at job sites. Plaintiff testified at the
hearing before the Full Commission that he primarily was
"helping" another employee in the shop who had been
assigned to the shop around the same time as Plaintiff. That
employee, according to Jeffrey Younts, Vice President of
Absolute Fire Control, replaced someone who had previously
been in that position and was lifting more than 20 pounds.
Plaintiff maintained his pre-injury work schedule and wage
two years of therapy, treatment, and joint injections,
Plaintiff's treating physician assigned Plaintiff
permanent work restrictions of no lifting more than 20
pounds, to alternate sitting and standing, no bending, and to
wear a brace while working.
August 2016, Plaintiff underwent non-work-related heart
surgery. When he returned to work in November 2016, Plaintiff
asked his supervisor if he could return to work in the field.
Plaintiff believed the additional walking in the field would
help his back condition. Defendant allowed Plaintiff to
return to the field as a helper, where his job duties
included wrapping Teflon tape on sprinkler heads, putting
pipe hangers together, and driving a forklift to load
sprinkler pipe for the installation crews.
November 2016, Plaintiff filed a Form 33 "Request for
Hearing" seeking a determination as to whether the
fabrication shop and field helper positions were suitable
jobs. A hearing was held before Deputy Commissioner Jesse M.
Tillman, III, on 20 June 2017. Deputy Commissioner Tillman
issued an opinion and award finding Plaintiff had failed to
meet his burden of proving he was disabled and thus did not
reach the question of whether the positions were suitable
employment. Deputy Commissioner Tillman denied
Plaintiff's request for temporary total and temporary
partial disability payments.
appealed to the Full Commission (the "Commission").
After hearing the appeal on 7 May 2018, the Commission issued
its opinion and award on 25 January 2019 affirming the Deputy
Commissioner and additionally finding the fabrication shop
position was suitable employment. The Commission found in
28. [Vice President of Absolute Fire Control] Mr. Younts
testified the fabrication shop positions are permanent
positions with Defendant-Employer. Mr. Younts testified the
work within the fabrication shop is an essential part of what
Defendant-Employer does through packaging material, putting
the parts together so the pipe fitters and foreman can do the
work at the job sites and Defendant-Employer continues to
have a need to hire and employ workers in the fabrication
32. Based upon a preponderance of the evidence in view of the
entire record, the Full Commission finds that the fabrication
shop is suitable employment. The fabrication shop position is
a permanent position with Defendant-Employer for which
Defendant-Employer has a regular and constant need to keep
staffed. The fabrication shop position was not specifically
tailored or created for Plaintiff. Further, the job duty
requirements for the fabrication shop position are within
Plaintiff's permanent restrictions and Plaintiff was
physically able to perform these job duties for almost two
years from November 24, 2014 until his non-work-related heart
surgery in August 2016. The fabrication shop position
entailed the same wages and hours as Plaintiff's
33. Based upon a preponderance of the evidence in view of the
entire record, the Full Commission finds that
Defendant-Employer's unique hiring practices of hiring
based upon word of mouth and personal recommendations does
not render the fabrication shop position not suitable. Albeit
confined to Defendant-Employer's unique
"advertisement," the positions available with
Defendant-Employer, including the fabrication shop position,
are available to individuals in the marketplace.
34. With regard to Plaintiff's contention that the field
helper job is not suitable employment, the Full Commission
finds that Defendant-Employer never offered Plaintiff the
field helper job as suitable employment. To the contrary,
Plaintiff specifically requested to return to work in the
field following his non-work-related heart surgery and
Defendant-Employer accommodated Plaintiff's request.
Further, at the time Plaintiff chose to return to work in the
field, Defendant-Employer had suitable employment available
for Plaintiff in the fabrication shop.
37. Based upon a preponderance of the evidence in view of the
entire record, the Full Commission finds that Plaintiff has
failed to show that he is disabled. To the contrary, a
preponderance of the evidence shows that Plaintiff is able to
earn his pre-injury wages with Defendant-Employer in a
suitable position that is within his permanent work
restrictions. Furthermore, none of Plaintiff's treating
physicians have removed him from work in any employment. He
has not made a reasonable, but unsuccessful search for work
nor has he shown that it would be futile due to preexisting
factors to search for work. Plaintiff has not proven that he
is disabled in employment outside of his employment with
Commission then concluded:
4. In controversy is whether the fabrication shop position
that Plaintiff worked in from November 24, 2014 until August
2016 and field worker position that Plaintiff worked in
following his return to work in 2016 are suitable jobs and
indicative of his wage earning capacity. Plaintiff contends
that although he remains employed by Defendant-Employer, the
work he is performing for Defendant-Employer is
"make-work" and if his employment with
Defendant-Employer were to end, then he would be unable to
earn his pre-injury wages in the competitive marketplace. . .
. In the present case, a preponderance of the evidence shows
that the fabrication shop position with Defendant-Employer is
suitable employment as it is a permanent position with
Defendant-Employer and it is essential to
Defendant-Employer's business and is a position that
Defendant-Employer has a regular and constant need to keep
staffed. The fabrication shop position was not tailored or
created specifically to fit Plaintiff's restrictions. The
fabrication shop position is within Plaintiff's permanent
restrictions and physical capacity to perform as evidenced by
Plaintiff successfully performing the job duties of the
fabrication shop position for almost two years and Plaintiff
is working the same hours and earning the same wages he did
in his pre-injury position. Further, the mere fact that
Defendant-Employer confines the advertisement of its
positions to the unique practice of word of mouth and/or
personal recommendations does not render the positions with
Defendant employer not suitable. . . . With regard to the
field worker position, Defendant-Employer did not offer
Plaintiff this position as suitable employment, instead
Plaintiff requested to return to work in this position and
Defendant-Employer accommodated Plaintiff's request.
Thus, the suitability of this position is moot.
5. Furthermore, Plaintiff has not otherwise proven that he is
disabled as no medical evidence was produced by Plaintiff
that he is physically or mentally, as a result of the
work-related injury, incapable of work in any employment. No
reasonable effort was made to obtain employment elsewhere. No
evidence was presented that Plaintiff is capable of some
work, but that seeking work would be futile because of
preexisting conditions, such as wage, inexperience, or lack
of education, to seek employment or that he is earning less
than his pre-injury wages. Hilliard, 305 N.C. at 595, 290
S.E.2d at 683; Russell, 108 N.C.App. 762, 425 S.E.2d 454.
Standard of Review
review of an opinion and award of the Commission is
"limited to consideration of whether competent evidence
supports the Commission's findings of fact and whether
the findings support the Commission's conclusions of
law." Philbeck v. Univ. of Mich., 235 N.C.App.
124, 127, 761 S.E.2d 668, 671 (2014) (citation and marks
omitted). The findings of fact made by the Commission are
conclusive on appeal if supported by competent evidence
"even if there is evidence to support a contrary
finding." Nale v. Ethan Allen, 199 N.C.App.
511, 514, 682 S.E.2d 231, 234 (2009). The Commission's
conclusions of law are reviewed de novo. Gregory
v. W.A. Brown & Sons, 212 N.C.App. 287, 295, 713
S.E.2d 68, 74 (2011).
Plaintiff challenges three of the Commission's
conclusions that served to bar him from disability benefits.
First, the Commission concluded that Plaintiff had not
engaged in a reasonable but unsuccessful effort to obtain
post-injury employment. Second, the Commission concluded
"[n]o evidence was presented that Plaintiff is capable
of some work, but that seeking work would be futile because
of preexisting conditions, such as wage, inexperience, or
lack of education, to seek employment or that he is earning
less than his pre-injury wages." And, finally, Plaintiff
takes issue with the Commission's conclusion that
Defendant provided and, for a time, Plaintiff performed
that the reasonable effort analysis reflects a well-reasoned
application of the law to these facts but conclude that the
Commission's futility and suitable employment assessments
are built on a misapplication of the governing case law.
Disability and Suitable Employment Jurisprudence
means incapacity, because of injury, to earn the wages the
employee was receiving at the time of injury in the same or
any other employment. N.C. Gen. Stat. § 97-2(9) (2017).
The burden is on the employee to prove diminished earning
capacity as the result of the work-related injury. See
Harvey v. Raleigh Police Dep't, 96 N.C.App. 28, 35,
384 S.E.2d 549, 553 (1989).
determination of disability is a conclusion of law that must
be supported by specific findings which show: (1) plaintiff
was incapable after his injury of earning the same wages he
had earned before his injury in the same employment; (2)
plaintiff was incapable after his injury of earning the same
wages he had earned before his injury at any other
employment; and (3) the incapacity to earn was caused by
plaintiff's injury. See Hilliard v. Apex Cabinet
Co., 305 N.C. at 593, 290 S.E.2d at 682. The burden is
on the employee to establish all three findings. See
Medlin v. Weaver Cooke Const., LLC, 367 N.C. 414, 420,
760 S.E.2d 732, 736 (2014). The employee may offer proof of
the first two findings through several methods, including:
(1) By producing medical evidence that the employee is
physically or mentally, as a consequence of the work-related
injury, incapable of work in any employment; or
(2) By producing evidence that the employee is capable of
some work, but after reasonable effort on the part of the
employee has been unsuccessful in efforts to obtain
(3) By producing evidence that the employee is capable of
some work but that it would be futile because of preexisting
conditions, i.e. age, inexperience, lack of education, to
seek other employment; or
(4) By producing evidence that the employee has obtained
other employment at a wage less than that earned ...