Morgan v. Interim Healthcare ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-942
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
ANTOINETTE MORGAN,
Employee, Plaintiff,
v. North Carolina Industrial
Commission
I.C. No. 899078
INTERIM HEALTHCARE,
Employer, SELF-INSURED
(GALLAGHER BASSETT SERVICES,
INC., Servicing Agent),
Defendant.
Appeal by plaintiff from opinion and award entered 10 April
2013 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 8 January 2014.
Hyler & Lopez, P.A., by Robert J. Lopez, for plaintiff-
appellant.
Brooks, Stevens & Pope, P.A., by Ginny P. Lanier, for
defendant-appellee.
BRYANT, Judge.
Where there was sufficient evidence that plaintiff reached
maximum medical improvement in January 2009, and that plaintiff
was offered but unjustifiably refused suitable employment, we
affirm the opinion and award of the Full Commission finding and
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concluding that plaintiff is not entitled to ongoing disability
benefits.
Plaintiff-employee Antoinette Morgan worked as a Certified
Nursing Assistant with Defendant employer Interim Healthcare
Services where she assisted patients in their homes. On 10
January 2008 and again on 18 January 2008 while assisting a
patient, plaintiff injured her back and hip. The injury,
diagnosed as a paralumbar strain, was reported to defendant and
plaintiff’s claim was accepted pursuant to defendant’s Form 60
as a compensable injury. Plaintiff’s average weekly
compensation rate was determined to be $232.78. On 29 April
2010, plaintiff filed a request that the claim be assigned for
hearing due to a disagreement about plaintiff’s entitlement to
indemnity and medical benefits. On 6 September 2011, the matter
was heard before Deputy Commissioner Kim Ledford. In an order
entered 18 October 2012, Deputy Commissioner Ledford denied
plaintiff’s claim for further medical compensation, awarding
compensation at a rate of $232.78 per week for six weeks only.
Plaintiff appealed the deputy commissioner’s order and award to
the Full Commission.
The matter was reviewed by the Full Commission (the
Commission) which entered an opinion and award finding that
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between 10 January 2008 and April 2010, plaintiff saw ten
physicians in regard to symptoms stemming from her compensable
injury. On 30 April 2008, less than four months after
plaintiff’s compensable injury, she was examined by Dr. James
Hoski, an orthopaedic surgeon with Spine Carolina. “Dr. Hoski
found no objective findings to support Plaintiff’s complaints of
pain.” While Dr. Hoski referred plaintiff to a pain management
physician, he recommended that plaintiff continue working four
hours per day with no patient transfers, bending, squatting, or
lifting more than five pounds. In October 2008, plaintiff
sought a second opinion from orthopaedic specialist Dr. Stephen
David. In November 2008, Dr. David assessed plaintiff at
maximum medical improvement for the injury to her back from
which the workers’ compensation claim stemmed. Dr. David
assigned permanent work restrictions of eight hour shifts,
alternating between sitting and standing with limited bending,
stooping, and twisting, and no lifting, pushing or pulling more
than 10 pounds. On 5 January 2009, Dr. David assigned plaintiff
a two percent permanent impairment rating to her spine and
discharged her from his care. After plaintiff received
permanent work restrictions, defendant twice offered her a full-
time clerical support position. Plaintiff accepted the position
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the second time it was offered but did not show up for work.
The day after she was to report to work, plaintiff went to the
Asheville Family Health Center. She requested a note
restricting her from work for the previous day. Defendant
stated that regardless of the out-of-work note, plaintiff
violated a zero tolerance policy by failing to notify defendant
she could not come to work, and plaintiff was terminated from
defendant’s employment. In April 2010, plaintiff was receiving
care from her primary care physician, Dr. Coin, and continued to
complain of left-side body symptoms. Dr. Coin “considered the
possibility that many of Plaintiff’s body symptoms were
manifestations of her emotions . . . .”
The Commission concluded that a preponderance of the
evidence established plaintiff had reached maximum medical
improvement with respect to her compensable injury by 5 January
2009. “Defendant has provided all medical treatment reasonably
required to effect a cure or give relief, and Plaintiff is not
entitled to further medical treatment under this claim.”
“Plaintiff unjustifiably refused suitable employment offered to
her by Defendant in December 2008 and again in January 2009.
Plaintiff is not entitled to compensation during the
continuation of her refusal.” The Commission denied plaintiff’s
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claim for further medical compensation and temporary total
disability, and affirmed the deputy commissioner’s award of
$232.78 per week for six weeks for plaintiff’s two percent
impairment to her back. Plaintiff appeals.
__________________________________
On appeal, plaintiff raises the following four issues:
whether the Commission erred by finding and concluding that
plaintiff (I) was at maximum medical improvement; (II) was
offered suitable employment; (III) refused suitable employment;
and (IV) was not entitled to further ongoing disability
benefits.
Standard of review
This Court's review is limited to a
determination of (1) whether the
Commission's findings of fact are supported
by competent evidence, and (2) whether the
Commissioner's conclusions of law are
supported by the findings of fact. The
Commission's findings of fact are conclusive
on appeal if supported by competent
evidence, even where there is evidence to
support contrary findings. The Commission's
conclusions of law, however, are reviewable
de novo by this Court. The Commission is the
sole judge of the credibility of the
witnesses and the weight accorded to their
testimony.
Meares v. Dana Corp./Wix Div., 172 N.C. App. 291, 292, 615
S.E.2d 912, 915 (2005) (citation and quotations omitted).
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“Unchallenged findings of fact are presumed to be supported by
competent evidence and are binding on appeal.” Allred v.
Exceptional Landscapes, Inc., ___ N.C. App. ___, ___, 743 S.E.2d
48, 51 (2013) (citation omitted). However, during our review of
challenged findings of fact, we do not reweigh the evidence.
See Bishop v. Ingles Markets, Inc., ___ N.C. App. ___, ___, ___
S.E.2d ___, ___ (filed April 15, 2014) (No.COA13-1102) (citation
omitted).
I
Plaintiff first argues the Commission erred by finding that
she reached maximum medical improvement (MMI) by January 2009.
Plaintiff contends that while her treating physicians did not
recommend surgical procedures to address her injury, she had
been referred to pain management specialists for evaluation and
treatment. And, because there were still courses of treatment
available to decrease or help manage her pain, plaintiff
contends she was not yet at MMI. We disagree.
MMI as a purely medical determination occurs
when the employee's physical recovery has
reached its peak, so that the extent to
which an employee has reached MMI is not
necessarily a crucial fact upon which the
question of plaintiff's right to
compensation depends.
The decisions of the Supreme Court and this
Court, which have consistently used the same
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standard to address disability-related
claims regardless of whether those claims
arose before or after MMI, make no mention
of utilizing different standards for making
such determinations depending upon whether
the claimant is still in the healing period.
Wynn v. United Health Servs./Two Rivers Health-Trent Campus, 214
N.C. App. 69, 78, 716 S.E.2d 373, 381—82 (2011) (citing Walker
v. Lake Rim Lawn & Garden, 155 N.C. App. 709, 717—18, 575 S.E.2d
764, 769 (utilizing N.C. Gen. Stat. § 97–32 to evaluate the
defendant's assertion that the plaintiff had refused suitable
employment despite the fact that the plaintiff had not reached
MMI), and Bailey v. Western Staff Servs., 151 N.C. App. 356,
363—64, 566 S.E.2d 509, 514 (2002) (evaluating the suitability
of a job offered to the claimant prior to MMI utilizing the same
standard applied in other cases)) (citations and quotations
omitted).
In its findings of fact, the Commission acknowledged the
medical assessments made by Drs. Hansen, Hoski, and David but
gave the greatest weight to the testimony of Dr. David.
Plaintiff challenged the Commission’s finding of fact premised
on Dr. David’s testimony that “Plaintiff reached maximum medical
improvement [(MMI)] by January 5, 2009 and retains a two percent
permanent impairment to her back as a result of the January 2008
injuries.” Though not specifically challenged, the Commission,
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taking into account the testimony of the doctors, further found
that plaintiff’s physical complaints had a non-organic basis:
“[i]t appears that Plaintiff may suffer from a psychological
problem such as a somatization disorder. However, this has not
been shown to have been caused by Plaintiff’s work-related
accidents.”
Other findings of fact show that in October 2008, plaintiff
was seen by Dr. David, an orthopaedic specialist, working with
the Blue Ridge Bone & Joint Clinic.
22. . . . Dr. David reviewed Plaintiff’s x-
rays and MRI results and saw no evidence of
scoliosis, spondylolysis or
spondylolisthesis, as well as no indications
of neurologic impingement or disc
herniation. The MRI showed only mild pre-
existing facet arthropathy at L4-5 and L5-
S1. The examination showed no neurological
deficits, only mild tenderness over the
paraspinal musculature, and subjective
decreased sensation of the left thigh and
left leg, which could not be objectively
verified. The examination was also positive
for Waddell’s Signs. Dr. David was of the
opinion that Plaintiff might have some
irritation around the piriformis, and he
referred her for a piriformis block . . .
because it did not appear that Plaintiff’s
pain was from her back.
23. On October 30, 2008, Plaintiff
underwent a sciatic nerve distribution block
to the piriformis muscle . . . . Plaintiff
returned to Dr. David and advised that the
piriformis injection did not help her pain.
. . . As of this visit, Dr. David assessed
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plaintiff at maximum medical improvement
from her workers’ compensation claim as to
her back, and he recommended that Plaintiff
undergo a functional capacity evalutation
(FCE). . . .
. . .
25. . . . [Dr. David] reviewed the FCE and
noted that there were variable levels of
physical effort on Plaintiff’s part, such
that the FCE was neither reliable nor
helpful in delineating Plaintiff’s
functional status. Dr. David set permanent
work restrictions of limited bending,
stooping and twisting, no lifting, pushing
or pulling more than 10 pounds, and
alternate sitting and standing. . . .
. . .
30. . . . Dr. David noted that the FCE
would allow Plaintiff to work an 8 hour day.
Dr. David’s deposition testimony supports the Commission’s
finding of fact which plaintiff challenges.
Based on these findings of fact, the Commission concluded
that “[a] preponderance of the evidence in view of the entire
record establishes that by January 5, 2009, Plaintiff had
reached maximum medical improvement with respect to her
compensable injury by accident.” As Dr. David’s deposition
testimony supports the Commission’s findings of fact and those
findings support its conclusion that plaintiff reached MMI as to
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the compensable injury to her back by 5 January 2009, we
overrule plaintiff’s argument.
II & III
Plaintiff next argues the Commission erred in finding that
defendant offered plaintiff “suitable employment” and that
plaintiff’s refusal was unjustified. Plaintiff contends the
evidence does not support a finding that the job duties were
within the scope of her physical restrictions and as to her
termination from employment, that defendant failed to establish
that her termination was unrelated to her disability. We
disagree.
“If an injured employee refuses suitable employment . . .,
the employee shall not be entitled to any compensation at any
time during the continuance of such refusal, unless in the
opinion of the Industrial Commission such refusal was
justified.” N.C. Gen. Stat. § 97-32 (2013). “‘Suitable
employment’ is defined as any job that a claimant is capable of
performing considering his age, education, physical limitations,
vocational skills and experience.” Munns v. Precision
Franchising, Inc., 196 N.C. App. 315, 317, 674 S.E.2d 430, 433
(2009) (citation omitted); see also N.C. Gen. Stat. § 97-2(22)
(2013) (defining suitable employment).
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A “suitable” position must both accurately
reflect the claimant's ability to earn wages
in the open market and not constitute “make-
work:”
. . . “The Workers’ Compensation Act
does not permit [the] defendants to
avoid their duty to pay compensation by
offering an injured employee employment
which the employee under normally
prevailing market conditions could find
nowhere else and which [the] defendants
could terminate at will or for reasons
beyond their control.”
Wynn, 214 N.C. App. at 75, 716 S.E.2d at 380 (citations
omitted). “If other employers would not hire the employee with
the employee's limitations . . . or if the proffered employment
is so modified because of the employee's limitations that it is
not ordinarily available in the competitive job market, the job
is ‘make work’ and is not competitive.” Precision Franchising,
196 N.C. App. at 319, 674 S.E.2d at 434 (citation and quotations
omitted). The burden is on the employer to show that the job
offered meets the definition of suitable employment. See id. at
318, 674 S.E.2d at 433.
Here, the Commission made the following challenged finding
of fact:
When Plaintiff was released by Dr. David to
return to light duty work in December 2008,
Ms. King and other personnel with Defendant
identified a job position that would include
light duty work in the office and
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accommodate her work restrictions. The
position offered to Plaintiff was the
Clerical Support position, which is a
position for which Defendant regularly hired
and which Plaintiff could have held
indefinitely. The position was not simply
made up to accommodate Plaintiff’s
restrictions.
We look to the evidence of record for support. But, initially,
we note the Commission’s finding of fact regarding plaintiff’s
physician-imposed work restrictions: “Dr. David set permanent
work restrictions of limited bending, stooping and twisting, no
lifting, pushing or pulling more than 10 pounds, and alternate
sitting and standing.” “[Dr. David] had no medical indication
that Plaintiff could not perform work within the restrictions
given to her, as they were consistent with activities of daily
living. Dr. David stated that the restrictions he assigned
plaintiff represent the minimum she was able to perform.”
Chief Executive Officer of Interim Healthcare, Delores
King, testified that following plaintiff’s January 2008
compensable injury, “[p]laintiff worked in a light duty capacity
in the office filing, answering telephones, and performing other
clerical duties as needed.” Plaintiff worked for four hours a
day. King testified as follows with regard to the offer for a
full-time clerical support position:
A. This is a job offer by Shelly Schaffer,
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who was the director of professional
services, offering a full time – a
full-time job, forty hours a week, that
– within the limits of her
restrictions. . . .
. . .
Q. Now, the job that’s being offered, is
this a position that the company
regularly has available for hire, to
hire people in?
A. Yes, it is.
Q. So it was not a position that was just
made up for [plaintiff]?
A. Was this position – this is a position
that we normally would have had in the
office, yes.
. . .
Q. And the position itself, then was there
an opening for the position that you
were offering, the full-time position
that you were offering [plaintiff]?
A. What I did at the time was I had two
part-time people who worked . . . .
. . . We have peak times when things
are busy. So what we did do at that
time is extended the hours of the
weekend people, and extended [a part-
time person’s hours]. But we still had
a gap where we needed somebody to fill
in for those, because we had some
overtime involved. So we – [plaintiff]
filled that role.
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The evidence of record supports the Commission’s finding
that the job requirements of the position offered plaintiff
included light duty work in an office consistent with
plaintiff’s physician-imposed work restrictions and it was a
position for which defendant regularly hired. Defendant’s job
offer was not “make work.” Therefore, we overrule plaintiff’s
argument that the employment offered was “make work” and not
suitable employment.
Refusal of suitable employment
Plaintiff further contends defendant failed to establish as
grounds for termination that her conduct amounted to misconduct
or fault.
[W]here an employee, who has sustained
a compensable injury and has been provided
light duty or rehabilitative employment, is
terminated from such employment for
misconduct or other fault on the part of the
employee, . . . the test is whether the
employee's loss of, or diminution in, wages
is attributable to the wrongful act
resulting in loss of employment, in which
case benefits will be barred, or whether
such loss or diminution in earning capacity
is due to the employee's work-related
disability, in which case the employee will
be entitled to benefits for such disability.
Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755,
762, 656 S.E.2d 676, 681 (2008) (citation omitted).
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On 23 December 2008, plaintiff met with Shelly Schaffer,
RN, the Director of Professional Services for Interim
Healthcare. Schaffer presented plaintiff with a formal offer
for a full-time Clerical Support position. Plaintiff was given
until 26 December 2008 to accept the position but did not
respond. By letter dated 5 January 2009, Schaffer again offered
plaintiff a full-time Clerical Support position, instructing
plaintiff to respond to the offer by 15 January 2009. On 15
January 2009, plaintiff notified defendant that she accepted the
job offer but that she had a note from the Asheville Family
Health Centers excusing her from work through 16 January.
38. Plaintiff was expected to begin work
with Defendant as an office assistant on
January 19, 2009. After Plaintiff failed to
call out of work or show up, she was
terminated pursuant to Defendant's
established company policy. Via a letter
from Ms. King dated January 23, 2009,
Defendant advised Plaintiff that Defendant
expected Plaintiff to show up for work on
January 19, 2009 and that her failure to do
so or to maintain contact with Defendant
resulted in forfeiture of her employment.
39. Ms. King testified that because
Defendant is a healthcare business, it has a
very strict attendance policy about which
all employees are informed. Employees sign a
policy acknowledging that termination is
immediate in the event that they do not show
up for work. . . . Ms. King explained that
Defendant will be flexible in the event an
employee is sick or has another legitimate
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problem, but if an employee simply does not
show up for work or does not call, the
employee is immediately terminated.
In her deposition, King testified “[t]o get fired, you had to be
dishonest, you had to be insubordinate, or you had to be no-
show.”
43. On January 19, 2009, Plaintiff returned
to Asheville Family Health Centers.
Plaintiff was not evaluated, rather, she
requested an out of work note to
retroactively take her out of work on
January 17, 2009. . . . On January 20, 2009,
[an RAC nurse] wrote a second out of work
note, without any accompanying evaluation of
Plaintiff, taking Plaintiff out of work from
January 17, 2009 through January 23, 2009. .
. .
. . .
48. . . . Dr. Clemenzi[, with Asheville
Family Health Centers,] testified that
"unfortunately" she and the clinic staff
give out of work notes to patients "pretty
freely." Dr. Clemenzi further testified that
she gives out work notes to people who she
thinks could be working.
We find that the record evidence supports the Commission’s
findings of fact, and we affirm the Commission’s conclusion that
plaintiff unjustifiably refused suitable employment.
Accordingly, we overrule plaintiff’s argument.
IV
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Lastly, plaintiff argues that even if the Commission were
to find that plaintiff unjustifiably refused suitable
employment, plaintiff is nevertheless entitled to ongoing
disability benefits. Plaintiff contends that if work-related
injuries prevented her from performing alternative duties or
finding comparable employment opportunities, she would be
entitled to benefits. We disagree.
“[T]he Seagraves rule aims to provide a means by which the
Industrial Commission can determine if the circumstances
surrounding a termination warrant preclusion or discontinuation
of injury-related benefits.” McRae v. Toastmaster, Inc., 358
N.C. 488, 495, 597 S.E.2d 695, 700 (2004) (referencing Seagraves
v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397(1996)). “[U]nder the Seagraves' test, to bar payment of
benefits, an employer must demonstrate initially that: (1) the
employee was terminated for misconduct; (2) the same misconduct
would have resulted in the termination of a nondisabled
employee; and (3) the termination was unrelated to the
employee's compensable injury.” Id. at 493, 597 S.E.2d at 699
(citing Seagraves, 123 N.C. App. at 234, 472 S.E.2d at 401).
As discussed in issues II and III, plaintiff’s termination
was based on her failure to report to work without any prior
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notification to defendant, conduct which violated defendant’s
employment policy. Chief Executive Officer King testified that
all employees are informed that Interim Healthcare has a strict
attendance policy and that employees sign a policy acknowledging
that termination of employment is immediate in the event the
employee fails to show-up for work absent notice. Plaintiff was
on notice that her failure to report to work absent any
notification to defendant would result in her termination. This
failure to notify defendant about plaintiff’s need to be absent
from work was not related to plaintiff’s compensable injury.
Though not dispositive of this last point, we note that in
plaintiff’s brief to this Court, she states, “[p]laintiff did
not notify her employer herself as she was not awake to call
them . . . .” The record provides no indication that work-
related injuries prevented plaintiff from performing the tasks
required by the position, tasks which were within her work
restrictions. Thus, defendant has provided sufficient evidence
to support the Commission’s conclusion that plaintiff
unjustifiably refused suitable work.
An employer's successful demonstration of constructive
refusal to perform suitable work by an employee can serve as a
bar to benefits for lost earnings, “unless the employee is then
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able to show that his or her inability to find or hold other
employment ... at a wage comparable to that earned prior to the
injury is due to the work-related disability.” Id. at 493—94,
597 S.E.2d at 699 (citation and quotations omitted).
Plaintiff contends that she is entitled to ongoing benefits
because her work related injuries have prevented her from either
performing alternative duties or finding comparable employment
opportunities. Plaintiff contends that “even if [she was]
capable of some work, seeking and finding employment within her
very limited sedentary / light duty work restrictions would be
futile and unrealistic . . . .” We disagree.
The Commission made the following unchallenged finding of
fact:
Plaintiff was 47 years of age. She has a
high school education and one and one-half
years of college, as well as several
continuing education clerical certificates
from community college. Her employment
history includes . . . clerical accounts
payable clerk work for a department store
for several years, . . . clerical work for a
janitorial services business for
approximately 10 years, . . . and a clerical
work for a doctor’s office for approximately
eight years.
Following plaintiff’s January 2008 injury, plaintiff “worked in
a light duty capacity in the office filing, answering
telephones, and performing other clerical duties . . . .” The
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Commission also found that “Plaintiff has not looked for work
since her termination by Defendant in January 2009.” On these
findings, the Commission drew the following conclusion:
[t]he greater weight of evidence fails to
show that Plaintiff continues to be unable
to earn wages in the same or any employment.
Plaintiff has refused suitable employment
and has otherwise made no effort to work
under reasonable restrictions. Therefore,
she is not entitled to any compensation
pursuant to N.C. Gen. Stat. ' 97-29 or N.C.
Gen. Stat. ' 97-30.
(citations omitted). Based on these unchallenged findings of
fact, we affirm the Commission’s conclusion that plaintiff was
unable to show her inability to find or hold employment at a
wage comparable to her pre-injury wage was due to her work-
related disability. Therefore, plaintiff is not entitled to
ongoing disability benefits. Accordingly, plaintiff’s argument
is overruled.
Affirmed.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).