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Griffin v. Absolute Fire Control, Inc.

Court of Appeals of North Carolina

January 7, 2020

STACY GRIFFIN, Employee-Plaintiff,
v.
ABSOLUTE FIRE CONTROL, INC., Employer, EVEREST NATIONAL INS. CO. & GALLAGHER BASSETT SERVS., Carrier, Defendants.

          Heard in the Court of Appeals 30 October 2019.

          Appeal by Plaintiff from an opinion and award entered 25 January 2019 by the North Carolina Industrial Commission. I.C. No. 14-053926

          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.

          BROOK, Judge.

         Stacy 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.

         I. Factual and Procedural Background

         Plaintiff 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.

         On 23 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 earnings.

         After 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.

         In 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.

         On 28 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.

         Plaintiff 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 part:

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 shop.
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 pre-injury position.
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 Defendant-Employer.

         The 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.

         Plaintiff timely appealed.

         II. Standard of Review

         Our 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).

         III. Analysis

         The 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 suitable employment.

         We hold 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.

         A. Disability and Suitable Employment Jurisprudence

         Disability 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).

         A 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.[1] 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 employment; or
(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 ...

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