Mawyin v. Liberty Homes ( 2006 )

The undersigned respectfully dissents from the Opinion and Award granting plaintiff continuing temporary total disability benefits. It is clear from the greater weight of the evidence plaintiff failed to prove any compensable disability beyond September 9, 2003.

Phil Cummings, the General Manager for defendant-employer testified that plaintiff left work on September 2, 2003 to attend a doctor's appointment and never returned. Plaintiff did not call, and did not inform defendant-employer that she had been taken out of work, nor did she provide an out of work note from her physician. Mr. Cummings testified that he tried numerous times to contact plaintiff regarding her return to work. He further testified that he was only able to reach plaintiff's daughter, who told him that plaintiff was not at home.

Mr. Cummings testified that he received a doctor's note indicating that plaintiff could perform light duty work, which he had available. He even testified that he called Dr. Furr's office and tried to leave a message for plaintiff to contact him. After plaintiff missed several days of work without any explanation to her employer, she was terminated in accordance with company policy for reasons unrelated to her injury. Seagraves v. AustinCo. of Greensboro, 123 N.C.App. 228, 472 S.E.2d 397 (1996);McRae v. Toastmaster, Inc. 358 N.C. 488, 597 S.E.2d 695 (2004). Accordingly, the burden shifts to plaintiff to prove that she is unable to work due to the alleged disability. Id. Plaintiff has failed to do so.

It is implausible to think that an employer could work any harder to help an injured employee return to work. The evidence shows that defendant-employer exhausted nearly every method available in attempting to reach plaintiff. Any work which was missed after September 9, 2003 is the result of plaintiff's failures to contact her employer and defendants should not be held accountable for plaintiff's actions or lack thereof.

Accordingly, I dissent.

This the __ day of _________________, 2006

S/___________ BUCK LATTIMORE CHAIRMAN