In re Medlin

Decision Date12 June 2014
Docket NumberNo. 411A13.,411A13.
CourtNorth Carolina Supreme Court
PartiesClaude V. MEDLIN, Employee v. WEAVER COOKE CONSTRUCTION, LLC, Employer, Key Risk Insurance Company, Carrier.

OPINION TEXT STARTS HERE

Appeal pursuant to N.C.G.S. § 7A–30(2) from the decision of a divided panel of the Court of Appeals, ––– N.C.App. ––––, 748 S.E.2d 343 (2013), affirming an opinion and award filed on 19 October 2012 by the North Carolina Industrial Commission. Heard in the Supreme Court on 18 February 2014.

Oxner, Thomas + Permar, by Michael G. Soto, for plaintiff-appellant.

Brewer Law Firm, P.A., Raleigh, by Joy H. Brewer and Ginny P. Lanier, for defendant-appellees.

Sumwalt Law Firm, Charlotte, by Vernon Sumwalt, for North Carolina Advocates for Justice, amicus curiae.

Young Moore and Henderson P.A., by Angela Farag Craddock, for North Carolina Association of Defense Attorneys, North Carolina Association of Self–Insurers, and North Carolina Chamber, amici curiae.

HUDSON, Justice.

Plaintiff Claude Medlin appealed the opinion and award of the North Carolina Industrial Commission terminating his temporary disability payments and awarding defendants Weaver Cooke Construction, LLC (Weaver) and Key Risk Insurance Company a credit for all disability payments made to Medlin after 22 December 2010. ––– N.C.App. ––––, ––––, 748 S.E.2d 343, 344 (2013). On appeal, the Court of Appeals affirmed the Commission in a divided opinion. The majority held that the Commission's binding findings of fact show that plaintiff's inability to find work was not due to his injury, but rather to large-scale economic factors. Id. at ––––, 748 S.E.2d at 347. Because we agree that plaintiff has not shown that his inability to earn the same wages as before his injury resulted from his work-related injury, we affirm.

Background

Plaintiff graduated from North Carolina State University in 1974 with a degree in civil engineering. Since then he has worked in the commercial construction industry in several different capacities, including as a project engineer, supervisor, project manager, and estimator. In April of 2006, defendant Weaver hired plaintiff and he worked for the company as both a project manager and an estimator. Id. at ––––, 748 S.E.2d at 344. As an estimator, plaintiff helped Weaver obtain construction jobs by pricing the estimate to ensure that those jobs could be completed under budget; this job was sedentary, but required that plaintiff be able to lift and carry up to ten pounds occasionally. As a project manager, plaintiff actually managed the construction projects; this job was at least slightly more physically demanding than the estimator position.

Plaintiff injured his right shoulder in May 2008 while helping to move a large credenza, then exacerbated the injury later that day when moving a fifty pound box of files. See id. at ––––, 748 S.E.2d at 344. After this injury, he continued to work for Weaver until 21 November 2008, when he was terminated as part of widespread layoffs both within the company, and within the construction industry as a whole. See id. at ––––, 748 S.E.2d at 344. The reason given for plaintiff's layoff was “reduction of staff due to lack of work.” Id. at ––––, 748 S.E.2d at 344. On 22 December 2008, after plaintiff was laid off, Weaver accepted his injury as compensable and submitted Industrial Commission Form 60. Id. at ––––, 748 S.E.2d at 344. In January 2009, plaintiff began to receive unemployment benefits from defendants; the next month, he began to receive temporary total disability payments as well. Id. at ––––, 748 S.E.2d at 344–45. These overlapping benefits continued until late March 2011. Id. at ––––, 748 S.E.2d at 345.

Starting in late 2008, plaintiff began medical treatment for his shoulder, primarily at the hands of Raymond Carroll, M.D., and Kevin Speer, M.D. See id. at ––––, 748 S.E.2d at 345. Dr. Carroll performed surgery on plaintiff's shoulder on 10 February 2009, and plaintiff began physical therapy. Id. at ––––, 748 S.E.2d at 345. However, plaintiff's shoulder pain worsened until he was discharged from therapy in April 2009. Id. at ––––, 748 S.E.2d at 345. An MRI conducted late in 2009 showed that plaintiff may have suffered a superior labral tear to his shoulder; but because this tear was not present at the time of the surgery performed earlier that year, Dr. Carroll concluded that it had not been caused by the May 2008 work injury. Both Dr. Carroll and Dr. Speer eventually placed plaintiff at maximum medical improvement, though plaintiff was assigned permanent work restrictions preventing him from lifting weights greater than ten pounds, climbing ladders, or performing repetitive overhead activities. Id. at ––––, 748 S.E.2d at 345.

During the period following his layoff, plaintiff sought employment within the construction industry. Although he estimated that he made hundreds of job inquiries, plaintiff was unable to find equivalent work in that industry. Id. at ––––, 748 S.E.2d at 345. Eventually, on 22 December 2010, defendants filed an Application to Terminate Payment of Compensation,” alleging that plaintiff could no longer show that he was disabled. Id. at ––––, 748 S.E.2d at 345. More specifically, defendants argued that plaintiff could not show that he was legally disabled because his inability to find another position as an estimator was due to the economic downturn, rather than to any physical limitations. Id. at ––––, 748 S.E.2d at 345.

Deputy Commissioner Philip A. Baddour, III heard this matter on 17 May 2011, and subsequently received the depositions of Dr. Speer, Dr. Carroll, Sandy J. Kimmel, D.O., and vocational case manager Gregory Henderson. The Deputy Commissioner denied plaintiff's claim for disability compensation after 22 December 2010, and awarded defendants a credit for all unemployment benefits plaintiff received during the time he also received disability compensation. Plaintiff appealed to the Full Commission.

The Full Commission heard the case on 4 September 2012. The Commission considered the parties' stipulations, several exhibits, and the testimony of several witnesses, including plaintiff, Dr. Carroll, Dr. Speer, Dr. Kimmel, and Mr. Henderson. Based on that evidence, the Commission made the following relevant findings of fact:

1. Plaintiff holds a Bachelor[ ] of Science degree in civil engineering. Since graduating in 1974, he has worked for several general contractors in the commercial construction context. Specifically, he has worked as a Project Engineer, Supervisor, Senior Estimator, and ultimately as a Project Manager on construction projects involving hospitals, prisons, and schools, among other things.

....

5. Plaintiff was laid off by Defendant–Employer on 21 November 2008 due to a reduction in Defendant–Employer's staff secondary to a lack of available work. This lack of available work experienced by Defendant–Employer is part of a larger economic downturn which has adversely affected the construction industry as a whole. In the parties' Pre–Trial Agreement, the parties stipulated that Plaintiff continued working following the injury and was laid off due to lack of work on November 21, 2008.”

....

10. On 20 May 2009, Dr. Carroll discharged Plaintiff from his care and released him to return to work without restrictions.

11. Plaintiff's medical care was subsequently transferred to Dr. Kevin Speer, an orthopaedic surgeon.... On 23 July 2009, Dr. Speer restricted Plaintiff from lifting over ten (10) pounds or engaging in repetitive overhead activities.

12. In late 2009, an MRI arthrogram of Plaintiff's right shoulder showed evidence of a possible superior labral tear which was not present at the time of the February 2009 surgery. Because the potential tear was not present in February 2009, Dr. Carroll opined to a reasonable degree of medical certainty that the tear was unrelated to the May 2008 work injury. Dr. Carroll further opined that it may be related to the weightlifting engaged in by Plaintiff following the February 2009 surgery.

....

22. Following his layoff, Plaintiff sought subsequent employment within the construction industry.

23. The position of Estimator is classified as a sedentary duty job by the Dictionary of Occupational Titles. 24. On 21 June 2010, VocMed conducted a job analysis for Plaintiff's pre-injury Estimator position. The analysis indicated that the job required lifting and carrying up to ten (10) pounds on an occasional basis.

25. On 18 November 2010, Gregory B. Henderson, a vocational case manager and President of VocMed, conducted a targeted labor market survey in which two employers in the commercial construction industry of similar size and geographic location confirmed that someone with Plaintiff's restrictions was physically capable of performing the job duties required by the Estimator position.

26. In an updated labor market survey conducted by Mr. Henderson on 18 July 2011, an additional three employers confirmed that someone with Plaintiff's restrictions was physically capable of performing the job duties required by the Estimator position.

27. Mr. Henderson offered testimony as an expert in the field of vocational rehabilitation. Mr. Henderson opined that Plaintiff has the vocational skills and physical capabilities needed to perform work as an Estimator. He further opined that Plaintiff would be able to return to work as an Estimator, but for the current economic downturn.

28. Eddie Carroll, Defendant–Employer's Senior Vice President of Pre–Construction, testified that Plaintiff could perform each of the regular duties of the Estimator position within his current restrictions.

Based on these findings of fact, the Commission concluded that plaintiff was not entitled to any disability payments made after 22 December 2010 (the date defendants filed the application to terminate payments), and that defendants were entitled to a credit for any payments they had made after that date. More specifically, the Full Commission made...

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