Outerbridge v. Perdue Farms, Inc., COA06-33.

• Court: North Carolina Court of Appeals
• Writing for the Court: Stephens
• Citation: Outerbridge v. Perdue Farms, Inc., 638 S.E.2d 564, 181 N.C.App. 50 (N.C. App. 2007)
• Decision Date: 02 January 2007
• Docket Number: No. COA06-33.,COA06-33.
• Parties: Gene OUTERBRIDGE, Employee, Plaintiff, v. PERDUE FARMS, INC., Employer, Self-Insured (Crawford & Company, Servicing Agent), Defendant.

638 S.E.2d 564

Gene OUTERBRIDGE, Employee, Plaintiff, v. PERDUE FARMS, INC., Employer, Self-Insured (Crawford & Company, Servicing Agent), Defendant.

No. COA06-33.

Court of Appeals of North Carolina.

January 2, 2007.

COPYRIGHT MATERIAL OMITTED

Appeal by Plaintiff from Opinion and Award entered 9 September 2005 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17 August 2006.

Curtis C. Coleman, III, Greenville, for Plaintiff-Appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Brian M. Freedman, Greensboro, for Defendant-Appellee.

STEPHENS, Judge.

Gene Outerbridge ("Plaintiff") appeals from an Opinion and Award of the North Carolina Industrial Commission ("Commission") that awarded him benefits for temporary total disability from 15 May 2000 through 29 November 2000 and permanent partial impairment for a five percent rating to his back. For the reasons stated herein, we remand this case to the Commission for additional findings.

Plaintiff was employed by Perdue Farms ("Defendant") on 15 May 2000 when he slipped and fell at work, injuring his back. Initially, Defendant accepted Plaintiff's claim for workers' compensation benefits as compensable and continued Plaintiff's salary from 15 May 2000 to 29 November 2000. Following Defendant's refusal to pay additional benefits, a hearing was conducted before a deputy commissioner, who issued an Opinion and Award awarding Plaintiff compensation for a five percent permanent impairment rating to his back and denying Plaintiff's claim for other benefits. Plaintiff appealed to the Full Commission, which issued an Opinion and Award on 9 September 2005, awarding Plaintiff temporary total disability benefits for the same period of time that his salary was continued and compensation for a five percent permanent partial impairment of his back. Plaintiff appeals.

By his first assignment of error, Plaintiff argues that the Commission erred by failing to make findings of fact as to whether he sustained a loss of wage-earning capacity after finding that he had suffered a permanent injury. We agree.

Specifically, Plaintiff's appeal challenges the Full Commission's failure to determine all the material facts arising from the evidence on the extent of Plaintiff's disability. Plaintiff described the disability issues in detail in the Industrial Commission Form 44 Application for Review filed with the Full Commission in connection with his appeal from the decision of the deputy commissioner. Plaintiff included multiple references to the evidence which he believed supported his contention that he was disabled and detailed his contentions regarding the lack of evidence to support a contrary determination. The uncontradicted evidence on which Plaintiff relied to support his contentions established the following:

At the time of the hearing, Plaintiff was forty-seven years old with a date of birth of 30 October 1955. He finished the tenth grade of high school. For the first fourteen years of his sixteen total years of employment with Defendant, his job was to work on machinery, "taking out motors, putting motors in, and rebuilding machines[.]" At the time of his injury, he had worked for two years as a "hands-on foreman[,]" a job which included regularly lifting fifteen to twenty pounds and, "sometimes[,]" fifty pounds. This job was performed mostly standing and also required stair-climbing. Plaintiff last performed this job on the day of his back injury, 15 May 2000. In Plaintiff's opinion, he is no longer able to do this job because of the lifting, standing and "going up and down steps" it requires. According to Plaintiff, the job is not sedentary in nature.

Plaintiff has not worked since he was released from the care of Dr. Ira Hardy, his treating neurosurgeon, on 29 November 2000. Upon releasing him, Dr. Hardy restricted Plaintiff to permanent sedentary work as defined by the Dictionary of Occupational Titles:

[e]xerting up to 10 pounds of force occasionally (... up to 1/3 of the time) and/or a negligible amount of force frequently ( ... 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time[.]

The report of the Functional Capacity Evaluation administered to Plaintiff at Dr. Hardy's request on 22 September 2000 characterized Plaintiff's foreman job with Defendant as "medium" in its physical requirements. To Plaintiff's knowledge, the only jobs with Defendant that would be within the sedentary work restrictions imposed by Dr. Hardy are the jobs in the front office of the plant, such as "[s]ecretarial work, answering the phone or taking a message or something like that." Plaintiff testified that Defendant has not offered him a job since Dr. Hardy released him.

The three jobs which Defendant did offer Plaintiff were offered "immediately after" Plaintiff's injury, before he came under the care of Dr. Hardy. In the opinion of Dr. Britt and Dr. Alexander, who were treating Plaintiff at the time, those jobs were within the modified duty work restrictions they had imposed. Specifically, Dr. Alexander testified that all three jobs would permit Plaintiff to "walk, sit, or stand as desired for comfort." When asked if the jobs had been offered to Plaintiff again after he was released by Dr. Hardy, Plaintiff's supervisor replied, "Not that I'm aware of."

The only effort Plaintiff has made to find work elsewhere since he was released by Dr. Hardy was to go to two grocery stores looking for work as a bag boy. He did not fill out applications for any job at either store. Plaintiff testified that he has "asked people" for employment, but that prospective employers have "refuse[d]" to give him an application when he tells them about the medications he takes for his pain.

From the evidence before it and in the face of the disability issues raised by Plaintiff, the Full Commission determined, inter alia, the following:

At the time of his injury on 15 May 2000, Plaintiff had been working for Defendant for about two years performing "various manual tasks for operating the equipment" which required lifting fifteen to twenty pounds and, occasionally, fifty pounds.

The Full Commission also determined that Dr. Keith Britt, the on-site physician to whom Defendant referred Plaintiff for treatment of his injury, released him to perform "modified duty with restrictions of no bending, twisting, or lifting over 5 pounds[.]" These restrictions were in place until 25 May 2000, when Dr. Britt revised the restrictions to further limit Plaintiff's work capacity to no lifting, as well as no bending and twisting.

Dr. Britt referred Plaintiff to Dr. James Alexander. Plaintiff saw this doctor on 31 May 2000, at which time he took Plaintiff out of work. On 6 June 2000, Dr. Alexander released Plaintiff to perform modified duty work "with instructions that he be permitted to walk, sit, or stand as desired for comfort." Dr. Alexander continued these restrictions when he last saw Plaintiff on 24 July 2000. Dr. Alexander further recommended that Plaintiff see Dr. Hardy. At no time did Dr. Alexander determine that Plaintiff was totally disabled from working.

On 31 July 2000, Plaintiff came under the care of Dr. Hardy who took him out of work "so that he could properly evaluate the plaintiff's condition." Following the performance of various diagnostic studies, Dr. Hardy determined, on 29 November 2000, that Plaintiff had reached maximum medical improvement. He released Plaintiff from care "and restricted him to sedentary work." He also assigned a five percent permanent impairment rating to Plaintiff's back.

Despite specifically finding that from 15 May through 25 May 2000, Plaintiff "refused to perform the work [Defendant] offered him" within the modified duty restrictions that had been imposed by Dr. Britt, and that as of 24 July 2000, Plaintiff "continued his refusal to return to suitable work which was offered to him by the employer" in accordance with the modified duty restrictions placed by Dr. Alexander, the Commission ultimately found that Plaintiff was totally unable to work from the date of his injury on 15 May until Dr. Hardy released him from care on 29 November 2000.

The Commission also found that after 29 November 2000, Plaintiff was "capable of sedentary work, as recommended by his treating physicians." The Commission then concluded that Plaintiff was entitled to temporary total disability benefits from 15 May through 29 November 2000 under N.C. Gen. Stat. § 97-29, and was limited to benefits thereafter under N.C. Gen.Stat. § 97-31 based on the five percent impairment rating.

Plaintiff argues that the Commission's findings of fact, as described above, are insufficient to resolve the disability issues raised by the uncontradicted evidence. We agree that the Commission failed to make sufficient factual determinations of the extent of Plaintiff's disability after 29 November 2000.

North Carolina workers' compensation disability law is so well established that it hardly bears repeating. The Workers' Compensation Act defines "disability" as the "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment." N.C. Gen.Stat. § 97-2(9). At least since the decisions of our Supreme Court in Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 348 S.E.2d 336 (1986), and Gupton v. Builders Transport, 320 N.C. 38, 357 S.E.2d 674 (1987), it has been the law of North Carolina that an employee who is able to prove a loss of wage-earning capacity, whether total or partial, "may elect to seek benefits under whichever statutory section will provide the more favorable remedy." Knight v. Wal-Mart Stores, Inc., 149 N.C.App. 1, 11, 562 S.E.2d 434, 442 (2002), aff'd, 357 N.C. 44, 577 S.E.2d 620 (2003). This is true even when the employee has reached maximum medical...