Oliver v. Lane Co.

• Court: North Carolina Court of Appeals
• Writing for the Court: WALKER.
• Citation: Oliver v. Lane Co., 544 S.E.2d 606, 143 N.C. App. 167 (N.C. App. 2001)
• Decision Date: 17 April 2001
• Docket Number: No. COA00-353.,COA00-353.
• Parties: Ternia Mae Mullins OLIVER, Employee-Plaintiff, v. LANE COMPANY, INCORPORATED, Employer-Defendant, and Self Insured (Alexis Servicing Agent), Carrier-Defendant.

544 S.E.2d 606

143 NC App. 167

Ternia Mae Mullins OLIVER, Employee-Plaintiff, v. LANE COMPANY, INCORPORATED, Employer-Defendant, and Self Insured (Alexis Servicing Agent), Carrier-Defendant.

No. COA00-353.

Court of Appeals of North Carolina.

April 17, 2001.

Randy D. Duncan, Hickory, for plaintiff-appellee.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P, by J.A. Gardner, III and Dana M. Mango, Charlotte, for defendant-appellant.

WALKER, Judge.

Plaintiff filed a claim to recover benefits for injuries resulting from her employment with defendant Lane. The deputy commissioner denied the claim; however, the Commission awarded total disability benefits and remanded the matter to the deputy commissioner for a "determination of the date of maximum medical improvement and the permanent partial disability, if any, ..." suffered by plaintiff. Lane appealed to this Court but the appeal was dismissed as interlocutory pending the remand to the deputy commissioner. Oliver v. Lane Co., Inc., 123 N.C.App. 354, 473 S.E.2d 693 (1996).

On remand, the deputy commissioner found plaintiff reached maximum medical improvement on 8 March 1994 and was left with permanent partial disabilities of ten and fifteen percent in her right and left hands respectively. On 7 December 1999, the Commission again reversed the deputy commissioner and ordered that plaintiff receive "ongoing total disability" until she returned to work or until further order of the Commission.

The findings of the Commission, in pertinent part, are summarized as follows: Lane is a furniture manufacturer and employed plaintiff as a jitterbug sander, a job which involved the continuous use of a vibrating, handheld sander. After suffering pain and numbness in her hands, plaintiff was diagnosed with bilateral carpal tunnel syndrome by Dr. Mark Marchese, a neurosurgeon in Hickory. Plaintiff underwent carpal tunnel release surgery on each hand in the Fall of 1993 and was released to return to light duty work on 29 November 1993. Plaintiff was restricted from performing repetitive motion work or lifting more than ten pounds for a period of three months.

Also, on 29 November 1993, Lane sent plaintiff a description of the wipe glaze job which was to be her position upon her return to work. The wipe glaze job entailed extensive use of the hands and wrists including polishing rough spots on furniture with steel wool, applying glaze, rubbing filler or stain over the furniture using a brush, cloth or power rubbing tool and rubbing the furniture to remove excess filler, stain, glaze or washcoat. When plaintiff returned to work, she refused to perform the wipe glaze job. The wipe glaze job offered to plaintiff by Lane was not suitable in that it was not within the physical restrictions established by Dr. Marchese. The wipe glaze job required repetitive hand and wrist use, which directly contradicted Dr. Marchese's recommendation. Plaintiff was unable to perform the wipe glaze job due to her compensable injury and there was no credible evidence that any plans for modification of the wipe glaze job were ever communicated to plaintiff or her treating physician. Plaintiff was justified in refusing to accept the wipe glaze job offered her by Lane as it was unsuitable given her physical condition and limitation resulting from her compensable occupational disease. Further, after plaintiff refused the wipe glaze job, she was terminated from her employment. Thereafter, Lane made no effort to provide vocational rehabilitation or to help plaintiff locate suitable employment. Subsequent to her termination, plaintiff filled out at least one hundred job applications, registered with the North Carolina Employment Security Commission and received assistance from North Carolina Vocational Rehabilitation for approximately four years. In March 1997, plaintiff found work as a cashier at a Food Lion grocery store but was unable to continue working there after July 1997 because of pain and other symptoms from her carpal tunnel syndrome.

Based on these findings, the Commission concluded, in part:

2. Plaintiff's employment with defendant-employer caused, or significantly contributed to the development of her occupational disease, carpal tunnel syndrome, and exposed her to an increased risk of developing this condition as compared to members of the general public not so employed. N.C. Gen.Stat. § 97-53(13).

3. As a result of her occupational disease, plaintiff was justified in refusing the wipe glaze position offered by defendant-employer on 29 November 1993. N.C. Gen. Stat. § 97-32.

4. As defendants failed to produce credible evidence that suitable jobs are available that plaintiff is capable of obtaining given her physical and vocational limitations, or that plaintiff is otherwise capable of earning wages; defendants have failed to prove that plaintiff is no longer disabled. Brown v. S & N Communications, Inc., 124 N.C.App. 320, 477 S.E.2d [197] (1996).

5. Plaintiff made reasonable efforts to obtain suitable employment without assistance from defendant. Plaintiff's trial return to work as a cashier at Food Lion was unsuccessful. N.C. Gen.Stat. § 97-32.1. The wages plaintiff earned at Food Lion are not indicative of her wage earning capacity. N.C. Gen.Stat. § 97-30.

The Commission awarded plain...