Russell v. Lowes Product Distribution

• Decision Date: 02 February 1993
• Docket Number: No. 9210IC12,9210IC12
• Citation: 108 N.C.App. 762,425 S.E.2d 454
• Court: North Carolina Court of Appeals
• Parties: Thomas N. RUSSELL v. LOWES PRODUCT DISTRIBUTION and Fred S. James Company.

Page 454

425 S.E.2d 454

108 N.C.App. 762

Thomas N. RUSSELL v. LOWES PRODUCT DISTRIBUTION and Fred S. James Company.

No. 9210IC12.

Court of Appeals of North Carolina.

Feb. 2, 1993.

Franklin Smith and Brian Flatley, Elkin, for plaintiff-appellant.

Teague, Campbell, Dennis & Gorham by George W. Dennis III and Richard L. Pennington, Raleigh, for defendants-appellees.

GREENE, Judge.

Plaintiff Thomas N. Russell (Russell) appeals from Opinion and Award for the North Carolina Industrial Commission (the Commission) denying total disability payments from Russell's employer, Lowe's Product Distribution (Lowe's), and the administrator of its self-insurance plan, the Fred S. James Company.

Russell, at the time of the initial hearing on this dispute, was thirty-five years old and had a high-school equivalency degree. Prior to 1988, he had been employed as a house painter, an assembly line worker, and a textile worker. Russell began working for Lowe's in February, 1988, as a forklift operator on the first shift. His job responsibilities included manually removing merchandise from tractor-trailer trucks. Russell was injured on 10 August 1988, when he fell from the top of a row of boxes while unloading a truck for Lowe's. Russell landed on the bed of the truck, striking his back and shoulders and causing him severe pain. Lowe's admitted liability for Russell's injury under the Workers' Compensation Act (the Act), and voluntarily paid Russell temporary total disability from 11 August 1988 until 9 August 1989. Shortly after his injury, Russell saw Dr. John Bond, who hospitalized Russell for twenty-two days for traction therapy. When this did not alleviate his pain, Russell was referred to Dr. Ernesto de la Torre, who performed surgery on Russell's neck on 28 November 1988 to remove a ruptured disk. On 8 March 1989, Dr. de la Torre released Russell to return to work with no restrictions.

On 13 March 1989, Russell spoke with Thomas Oakes, personnel manager of Lowe's, about returning to work. As no jobs were available on the first shift, Oakes offered Russell a second-shift position which involved loading trucks. Russell refused the position and Lowe's agreed to send Russell to Dr. Craig Bennett, an orthopedic specialist, for further medical evaluation. Dr. Bennett treated Russell and referred him for more tests. The tests failed to show any definitive physical problems except for mild arthritic changes and scar tissue. Dr. Bennett testified that because of his injury, Russell is unable to perform the type of heavy manual work required in the position he held at Lowe's at the time of his injury. Dr. Bennett found that Russell had reached maximum medical improvement on 27 July 1989. He rated Russell's disability at 20% permanent impairment of the back, and released him to work with certain permanent restrictions. These restrictions included no forward bending, no overhead activity, no standing or sitting for prolonged periods of time, and no prolonged lifting greater than twenty-five pounds.

After release with these restrictions, Russell again reported to Lowe's for work. Upon seeing the work restrictions, Lowe's informed Russell that no job in its distribution center could be performed within the restrictions. Russell attempted to find work at other jobs, but was unsuccessful. On 12 August 1989, Russell filed with the Commission seeking permanent total disability under Section 97-29 of the Act. A hearing was held, at which the Commission made the following pertinent findings of fact:

10. ... Dr. Bennett rated plaintiff with a 20 percent permanent partial disability to the back and on July 27, 1989 released him to return to work with the restrictions of no forward bending, no overhead activity, no lifting greater than 25 pounds, and no prolonged standing or sitting. These restrictions would be permanent for the plaintiff as pertains to prolonged manual labor or repetitive-labor activity.

....

12. Subsequent to being released by Dr. Bennett on July 27, 1989, plaintiff returned to [Lowe's]. However, [Lowe's], upon seeing the restrictions that had been placed upon plaintiff by Dr. Bennett, informed him that there was no work available and further informed him that he was released from his employment with Lowe's Products Distribution.

13. Plaintiff obtained maximum medical improvement on July 27, 1989 and returned to work but no work was available with [Lowe's]. Thereafter, plaintiff sought work at various locations. Plaintiff made seven or eight job applications according to his testimony.... Plaintiff was refused jobs at two locations because of his medical restrictions. At the other locations, plaintiff was not sure why he was refused. He did not know whether it was because there was no work available or whether it related to his restrictions and/or job training.

14. Plaintiff was vague in his testimony about work he had sought and was unable to name the exact names of employers to whom he had made application nor the dates upon which he had made application nor for what jobs he had applied nor how he represented himself to the prospective employers except for the limited number of applications heretofore noted. Thus, the undersigned [Deputy Commissioner] does find as fact that plaintiff reached maximum medical improvement and thereafter, even though he was unable to return to work with [Lowe's], did not vigorously seek other employment nor has he demonstrated that he has any disability other than as noted by Dr. Bennett which...