Fletcher v. Dana Corp.

• Decision Date: 18 July 1995
• Docket Number: No. 9310IC1103,9310IC1103
• Court: North Carolina Court of Appeals
• Parties: Dennis FLETCHER, Employee/Plaintiff, v. DANA CORPORATION, and Hartford Accident & Indemnity Co., Defendants.

Page 31

459 S.E.2d 31

119 N.C.App. 491

Dennis FLETCHER, Employee/Plaintiff, v. DANA CORPORATION, and Hartford Accident & Indemnity Co., Defendants.

No. 9310IC1103.

Court of Appeals of North Carolina.

July 18, 1995.

Byrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A. by C. Scott Whisnant, for plaintiff-appellee.

Blue, Fellerath, Cloninger & Barbour, P.A. by Frederick S. Barbour, for defendant-appellants.

Smith, Helms, Mulliss & Moore, L.L.P. by Jeri L. Whitfield, George D. Kimberly, Jr., Todd W. Cline, for the North Carolina Textile Mfrs. Ass'n filing brief amicus curiae.

JOHN, Judge.

Defendants appeal an award to plaintiff by the North Carolina Industrial Commission (the Commission) of temporary total disability accrued during the period between 7 November 1989 and 1 April 1991. Defendants contend the Commission erred by basing its determination of disability upon plaintiff's inability to obtain employment during the period in question. We find defendants' argument unpersuasive.

Relevant background information includes the following: Plaintiff was injured 27 January 1989 in the course of his employment with defendant Dana Corporation (Dana). He was struck in the left arm by a steel chip buggy, part of a train of carts containing scrap metal moved by a tow motor. After undergoing surgery on his shoulder, plaintiff returned to work 24 July 1989. On 8 September 1989, plaintiff was assessed by Dr. Larry G. Anderson, his treating physician, as having 20% permanent partial disability of the left arm. Plaintiff received temporary total disability compensation until returning to work as well as compensation for the permanent disability rating.

On 17 October 1989, plaintiff reinjured his shoulder while attempting to move a basket containing approximately one dozen 60-pound axle tubes. He thereafter was restricted by Dr. Anderson from lifting more than 40 pounds and from lifting overhead. However, neither plaintiff's job nor any other position then available at Dana was consistent with the limitations imposed by Dr. Anderson. Plaintiff consequently was discharged 7 November 1989. Despite extensive efforts, he was unable to secure employment until 1 April 1991.

On 1 February 1991, plaintiff's claim for disability benefits was heard by Deputy Commissioner Charles Markham who ruled plaintiff was not entitled to temporary total disability benefits for the period subsequent to 7 November 1989.

Plaintiff appealed the decision to the full Commission. In an Opinion and Award filed 28 September 1993, the Commission reversed the Deputy Commissioner and ordered defendants to pay temporary total disability accrued during the period of 7 November 1989 through 1 April 1991. In pertinent part, the Commission specified the following findings and conclusions:

10. Dr. Anderson believed that as of October 25, 1989, when he gave plaintiff the written restriction as to the 40 pound weight limitation, plaintiff had essentially reached the maximum point of medical improvement. It was his opinion that as of October 25, 1989, Mr. Fletcher could work with the restrictions given him, that is, not lifting anything above 40 pounds. From a medical point of view, plaintiff would have been able to perform sales work or administrative work as of October 25, 1989.

11. Dana Corporation had no jobs available which met plaintiff's physical restrictions. Therefore, he was terminated on November 7, 1989....

12. After his termination November 7, 1989 and until the time of the hearing [before the Deputy Commissioner], plaintiff made extensive but unsuccessful efforts to gain employment. Plaintiff did not limit himself in this search to industrial work but included supervisory positions and jobs in state government. He was involved with the Employment Security Commission. While he was initially somewhat selective in terms of the pay expected, he lowered his sights, and finally was willing to take anything he could find (except selling insurance). Plaintiff had and sought no medical treatment after November, 1989 except that he received pain medications from his family physician. He did not re-apply for a position with [Dana] as far as its personnel director was aware.

....

17. Despite reasonable efforts, the plaintiff was not able to actually obtain employment from his discharge on November 7, 1989 until returning to work on April 1, 1991.

. . . . .

CONCLUSION OF LAW

As a result of the compensable injury, the plaintiff was unable to obtain employment, despite reasonable efforts, until April 1, 1991, and plaintiff is entitled to temporary total disability benefits from the time of his discharge from defendants' [sic] employment on November 7, 1989 until obtaining employment on April 1, 1991, and such other and further medical compensation as may effect a cure, give relief or shorten the period of the claimant's disability.

Defendants gave notice of appeal to this Court 8 October 1993.

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We note at the outset that defendants' assignments of error set out in the record on appeal do not conform to our Rules of Appellate Procedure. Appellate Rule 10(c) provides that "[e]ach assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned." As defendants merely cite to portions of the Commission's Opinion without setting forth a basis for error, their appeal is subject to dismissal. See Marsico v. Adams, 47 N.C.App. 196, 197, 266 S.E.2d 696, 698 (1980) (rules of appellate procedure are mandatory and failure to comport with the rules subjects an appeal to dismissal). However, pursuant to our discretionary power in N.C.R.App. P. 2, we nonetheless elect to review the merits of defendants' appeal.

"It is well established that the Industrial Commission's findings of fact are binding on appeal when supported by competent evidence." Lackey v. R.L. Stowe Mills, 106 N.C.App. 658, 661, 418 S.E.2d 517, 519, disc. review denied, 332 N.C. 345, 421 S.E.2d 150 (1992) (citations omitted). Moreover, an Opinion and Award of the Commission will not be disturbed on appeal unless it contains a patent error of law. Carter v. Frank Shelton, Inc., 62 N.C.App. 378, 381, 303 S.E.2d 184, 187 (1983), disc. review denied, 310 N.C. 476, 312 S.E.2d 883 (1984). Defendants and amicus counsel argue the Commission committed error of law by awarding temporary total disability benefits to plaintiff under circumstances wherein he possessed the capacity to earn wages and thus was not totally disabled. Defendants assert the Commission thereby "stretched [the Workers' Compensation Act] to provide unemployment insurance for workers ready, willing and able to work who have qualifications to obtain employment, but who are unemployed because of economic conditions." We disagree.

A claimant seeking to recover under the Workers' Compensation Act (the Act) bears the burden of proving both the existence and extent of disability. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982) (citation omitted). Under the Act, an employee injured in the course of his employment is "disabled" if the injury results in an "incapacity ... to earn the wages which the employee was receiving at the time of injury in the same or any other employment." N.C.Gen.Stat. § 97-2(9) (1991). Disability as defined in the Act is thus the impairment of the injured employee's earning capacity rather than physical disablement. Peoples v. Cone Mills Corp., 316 N.C. 426, 434, 342 S.E.2d 798, 804 (1986).

A claimant may meet the burden of proving inability to earn the same wages earned before injury by showing "he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment." Russell v. Lowes Product Distribution, 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993) (citation omitted).

Defendants assert the Commission misinterpreted Russell and "erroneously focused on whether plaintiff was able to actually obtain employment" instead of whether plaintiff was capable of earning the same wages. Amicus counsel maintains an injured employee in the circumstance of plaintiff must demonstrate "he is unable to work and not merely that he unsuccessfully sought work." In addition, counsel reiterates defendants' contention that the holding of the full Commission in reliance upon Russell "in effect convert[ed] temporary total disability [in]to unemployment compensation."

However, the Court in Russell did not address the causes of plaintiff's inability to obtain employment, but rather focused upon evidence of plaintiff's reasonable efforts to obtain employment as being one means of meeting his burden of showing incapacity to earn the same wages earned prior to injury. Id. at 764-65, 425 S.E.2d at 456-57.

"[T]he so-called 'work search' test is merely the evidentiary vehicle by which employability, or lack of it, is proven," Flesche v. Interstate Warehouse, 411 So.2d 919, 922 (Fla. 1st DCA 1982), and "there are a number of criteria by which wage-earning capacity must be measured, and 'no single factor is conclusive.' "

Anderson v. S & S Diversified, Inc., 477 So.2d 591, 594 (Fla. 1st DCA 1985), disc. review denied, 486 So.2d 597 (Fla.1986) (quoting Walker v. Electronic Products & Engineering Co., 248 So.2d 161, 163 (Fla.1971)); see also Church's Fried Chicken v. Maloney, 599 So.2d 706, 710 (Fla. 1st DCA 1992) and Vann v. St. Anthony's Hosp., 550 So.2d 533, 534 (Fla. 1st DCA 1989) (work search an "evidentiary tool" to demonstrate causal connection between injury and wage loss).

As opposed to Russell, the issue in the case sub judice is whether plaintiff, having met the Russell test with credible (as determined by the Commission) evidence of diligent efforts to find employment, is entitled to receive compensation benefits where his inability to earn the same wages was caused in part by...