Seagraves v. Austin Co. of Greensboro

• Decision Date: 16 July 1996
• Docket Number: No. COA95-853,COA95-853
• Citation: 1996 WL 406457,472 S.E.2d 397,123 N.C.App. 228
• Parties: Cheryl D. SEAGRAVES, Plaintiff-Employee, v. The AUSTIN COMPANY OF GREENSBORO, Defendant-Employer (Self-Insured Key Risk Management Services).
• Court: North Carolina Court of Appeals

Page 397

472 S.E.2d 397

123 N.C.App. 228

Cheryl D. SEAGRAVES, Plaintiff-Employee, v. The AUSTIN COMPANY OF GREENSBORO, Defendant-Employer (Self-Insured Key Risk Management Services).

No. COA95-853.

Court of Appeals of North Carolina.

July 16, 1996.

Franklin Smith, Elkins, for plaintiff-appellee.

Tuggle Duggins & Meschan, P.A. by Elizabeth G. Grimes and J. Reed Johnston, Jr., Greensboro, for defendant-appellant.

JOHN C. MARTIN, Judge.

Defendant-employer appeals from an opinion and award of the North Carolina Industrial Commission awarding plaintiff benefits for temporary total disability. The record establishes that in 1992, plaintiff developed bilateral carpal tunnel syndrome and associated right tardy ulnar nerve palsy in connection with her employment as an assembly line worker at defendant-employer's plant in Yadkinville, North Carolina. Plaintiff underwent multiple corrective surgical procedures during the period from June 1992 until May 1993. Defendant, who was self-insured, accepted liability for plaintiff's occupational disease and plaintiff received benefits for temporary disability.

In July 1993, plaintiff was permitted by her physician to return to light duty work with defendant, and light duty work was provided to her in the form of a non-production job making boxes. On 9 August 1993, however, defendant terminated plaintiff's employment for alleged gross misconduct arising out of an incident in which plaintiff briefly exposed her buttocks to two female co-employees during horseplay at the workplace.

After her termination, plaintiff continued to experience difficulties with her hands and was seen by Dr. Andrew Koman at the Wake Forest University Hand Center in November 1993. On 8 February 1994, Dr. Koman performed additional right carpal tunnel release surgery. Defendant paid plaintiff benefits for temporary total disability from 8 February 1994 until 13 July 1994, when she reached maximum medical improvement. In Dr. Koman's opinion, plaintiff retains ten and twenty percent permanent partial disabilities to her left and right hands, respectively, and is able to engage only in light duty work not requiring repetitive hand motion or lifting in excess of ten pounds. According to plaintiff, she has been unsuccessful in finding other suitable employment since her discharge. Defendant ceased making payments to plaintiff for temporary total disability on 13 July 1994, contending plaintiff's termination for misconduct amounted to a constructive refusal by her to accept suitable light duty work offered her and a forfeiture of her right to compensation under G.S. § 97-32.

Declining to decide whether plaintiff's conduct constituted cause for defendant to terminate her employment, the deputy commissioner found that such conduct was, in any event, not tantamount to a refusal to accept suitable light work. He concluded, in the absence of such light duty work and because she retained permanent partial disabilities in both hands, that plaintiff remained totally disabled and awarded her benefits for temporary total disability from 9 August 1993, the date of her termination by defendant, to 8 February 1994, the date of her surgery, and from 13 July 1994 and continuing for the period of her disability. Defendant appealed to the Full Commission. While the appeal to the Full Commission was pending, defendant moved, pursuant to Rule 701(7) of the Workers' Compensation Rules, for a new hearing to take additional evidence on the issue of plaintiff's disability, supported by an affidavit tending to show that plaintiff had been employed at a nursing home from 21 November 1994 to 27 December 1994.

The Full Commission entered its opinion and award finding that defendant had not shown good grounds to take further evidence, adopting the findings made by the deputy commissioner, and awarding plaintiff benefits for temporary total disability from 9 August 1993 and continuing for as long as plaintiff remains totally disabled, subject to a credit for benefits paid from 8 February 1994 to 13 July 1994, and reasonable and necessary medical expenses.

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G.S. § 97-32 provides:

If an injured employee refuses employment procured for him suitable to his capacity he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified.

The primary question presented by this appeal is whether an employee, who is disabled as a result of a compensable injury and is provided with light duty employment by the employer, constructively refuses the light duty work and forfeits workers' compensation benefits for such disability pursuant to the statute upon termination of the employment for fault or misconduct unrelated to the compensable injury. The question is apparently one of first impression in North Carolina.

Courts in other jurisdictions have approached the issue in divergent ways. On one hand, it has been held that a disabled employee who can perform the light duty work provided by his or her employer, yet is fired for conduct that would normally result in the termination of a nondisabled employee and that in no way is connected with the disability, is in actuality refusing to perform the work, and is barred, ipso facto, from receiving any further disability benefits. Calvert v. General Motors Corp., Buick Motor Div., 120 Mich.App. 635, 327 N.W.2d 542 (1982). Defendant advocates that we adopt such a rule in North Carolina by holding that plaintiff's discharge for misconduct amounted to an unjustified constructive refusal to work and a forfeiture of benefits under G.S. § 97-32.

In Calvert, the disabled employee, who had returned to "favored" work at General Motors after sustaining a work-related injury, was discharged for violating a company rule against possession of weapons on company premises. The Workers' Compensation Appeals Board awarded a resumption of compensation on the ground that the employee's act of carrying an unloaded pistol in her purse, while a "criminally serious" act, did not involve moral turpitude and did not disrupt the workplace.

The Michigan Court of Appeals reversed the Board, holding that even though the employee's conduct was not morally turpitudinous, it was preventable misconduct for which any employee would have been discharged. Id. at 643, 327 N.W.2d at 546. The Court quoted from its prior decision in Porter v. Ford Motor Co., 109 Mich.App. 728, 732, 311 N.W.2d 458, 460 (1981):

"If defendant can show that plaintiff was fired for violation of company rules which would normally result in termination of a nondisabled employee, and that the violation was not caused by plaintiff's disability, the benefits may be properly denied.

By establishing the second prong of this test, both parties are protected. The employee is guarded against termination or harassment leading to voluntary termination as a pretext to denial of benefits. The employer is insulated against unacceptable behavior which normally would result in termination of other employees. A disabled employee who can perform that favored work, yet violates company rules to the extent that discharge is justified, in actuality is refusing to perform the favored work and thus creating a bar to compensation ... [citation omitted]."

Therefore, the Court concluded, plaintiff's conduct in carrying a concealed weapon was "just cause" for the employee's discharge, barring her from receiving further compensation. Id. at...