Silva v. Lowe's Home Improvement

• Decision Date: 19 May 2009
• Docket Number: No. COA08-943.,COA08-943.
• Citation: 676 S.E.2d 604
• Parties: Gilbert SILVA, Employee, Plaintiff v. LOWE'S HOME IMPROVEMENT, Employer, Specialty Risk Services, Carrier, Defendants.
• Court: North Carolina Court of Appeals

676 S.E.2d 604

Gilbert SILVA, Employee, Plaintiff v. LOWE'S HOME IMPROVEMENT, Employer Specialty Risk Services, Carrier, Defendants.

No. COA08-943.

Court of Appeals of North Carolina.

May 19, 2009.

Appeal by defendant-employer and defendant-carrier from judgment entered 14 April 2008 by the Full Industrial Commission. Heard in the Court of Appeals 9 March 2009.

The Kilbride Law Firm, PLLC, by Terry M. Kilbride, Raleigh, for plaintiff-employee.

Moore & Van Allen, PLLC, by Anthony T. Lathrop, Michael T. Champion, and M. Cabell Clay, Charlotte, for employer-appellant and carrier-appellant.

MARTIN, Chief Judge.

Defendant-employer Lowe's Home Improvement ("defendant-employer") and defendant-carrier Specialty Risk Services ("defendant-carrier") (collectively "defendants") appeal from the Opinion and Award of the North Carolina Industrial Commission ("Commission") awarding plaintiff-employee Gilbert Silva ("plaintiff") temporary total disability and medical expenses. We affirm.

The facts underlying the present appeal are set out in Silva v. Lowe's Home Improvement, 176 N.C.App. 229, 625 S.E.2d 613 (2006). In pertinent part, that case addressed the Commission's findings regarding the circumstances of defendant-employer's termination of plaintiff. Plaintiff worked for defendant-employer in the plumbing department, where, prior to his termination, plaintiff had experienced two accident-related injuries. After seeing a doctor for treatment, plaintiff was released to return to work with restrictions. Plaintiff's physician instructed him not to lift over twenty-five pounds continuously, or over forty pounds on occasion. Subsequently, plaintiff met with his supervisor to discuss various work duties which plaintiff found difficult to perform due to his restrictions. During the meeting a heated exchange took place and plaintiff was later terminated by telephone. Thereafter, plaintiff requested a hearing before the Commission alleging entitlement to continuing disability compensation.

After a hearing, the deputy commissioner entered an opinion and award concluding that plaintiff was terminated for insubordination for which a non-disabled employee would have been terminated. Plaintiff appealed to the Full Commission, which entered an Opinion and Award reversing the deputy commissioner and awarding plaintiff ongoing total disability compensation until plaintiff returned to work, as well as all medical expenses incurred as a result of plaintiff's injury. Upon appeal by defendants, this Court held that record evidence supported the Commission's findings that plaintiff's termination was directly related to his light-duty work restrictions and defendants failed to show plaintiff was terminated for misconduct for which a non-disabled employee would have been terminated. However, we also held that the Commission "failed to make specific findings of fact as to the crucial questions necessary to support a conclusion as to whether plaintiff had suffered any disability as defined by G.S. § 97-2(9)." Id. at 236, 625 S.E.2d at 620 (quoting Hilliard v. Apex Cabinet Co., 305 N.C. 593, 596, 290 S.E.2d 682, 684 (1982)). Accordingly, we remanded to the Commission for proper findings on this issue in accordance with Lawton v. County of Durham, 85 N.C.App. 589, 592, 355 S.E.2d 158, 160 (1987) (holding that where the findings are insufficient to enable the reviewing court to determine the rights of the parties, the case must be remanded to the Commission for proper findings of fact).

On remand the Full Commission remanded the proceedings to the deputy commissioner "for the taking of additional evidence and additional hearing, if necessary, and the entry of an Opinion and Award regarding the issue of continuing disability compensation as directed herein." On 5 December 2006, the parties entered into a pre-trial agreement, stipulating to the admission of certain evidence and the deposition testimony of certain witnesses. On 21 February 2007, the Full Commission filed an amended order remanding the case to the deputy commissioner "for the taking of additional evidence and ordering the preparation of a transcript for submission to the Full Commission," specifically stating, "[t]his case remains under jurisdiction of this Full Commission panel for decision and entry of an Opinion and Award." Subsequently, an evidentiary hearing was conducted by the deputy commissioner, where plaintiff was allowed to testify and evidence of plaintiff's search for employment was admitted. Afterwards, additional depositions were taken and admitted into evidence by the deputy commissioner.

On 24 April 2008, the Full Commission filed an Opinion and Award on Remand awarding plaintiff temporary total disability and medical expenses. The Full Commission's Opinion and Award specifically stated, "[t]he appealing party has shown good ground to receive further evidence or to amend the holding of the Deputy Commissioner's Opinion and Award," referring to the 2003 opinion and award of Deputy Commissioner Phillips. See Silva, 176 N.C.App. at 231, 625 S.E.2d at 617. The Full Commission's Opinion and Award also contained, inter alia, the following findings of fact:

9. The plaintiff testified at the hearing before the Deputy Commissioner that he has been unemployed since the date of his termination with the defendant-employer. The plaintiff testified that he has made extensive efforts to find other employment within his restrictions by answering newspaper job ads, using Internet job placement websites, and has sending [sic] his resume to prospective employers. Though plaintiff testified that he has applied for over 300 positions, the Full Commission finds that there is insufficient documentary evidence of record, beyond plaintiff's own testimony, to show that plaintiff has made a reasonable job search.

10. Donald Woodburn, M.D., has served as the plaintiff's primary care physician since 2001, and continues to treat the plaintiff for "non-cardiac" chest pain. Dr. Woodburn testified at deposition that the plaintiff's chest pain is typical of or mimics those [sic] of a heart attack, though work-ups by a cardiologist have concluded that plaintiff's pain is not related to a cardiological problem. Dr. Woodburn testified that the plaintiff suffers from significant restrictions in the use of his left arm and "cannot do anything overhead because it stresses the rib cage and increases his pain." Based on the plaintiff's ongoing chest pain, Dr. Woodburn was of the opinion, and the Full Commission finds as fact that the plaintiff is not capable of gainful employment.

11. Clifford Wheeless, M.D., a board certified orthopedic specialist also provided deposition testimony in this matter. Dr. Wheeless has diagnosed plaintiff with an atypical form of costochondritis caused by the trauma to plaintiff's chest and ribs as a consequence of the work-related accident on May 26, 2001. Dr. Wheeless characterized the plaintiff's costochondritis as an "insufficiency fracture" that is akin to a stress fracture with accompanying cartilage injury where the ribs meet the sternum. Dr. Wheeless stated that such fractures tend not to heal normally, restricting one's ability to perform lifting activities and becoming a "major nuisance" with symptoms that mimic a myocardial infarction, or heart attack. Although Dr. Wheeless would not say that plaintiff is incapable of gainful employment, he testified that plaintiff should have lifting restrictions and should not drive more than one hour a day because of various pain medications and analgesics prescribed to the plaintiff to relieve his ongoing pain.

12. The defendants have employed two vocational rehabilitation specialists in this matter, Dwanda Scott and Stephanie Yost, both of whom testified in this matter. Ms. Scott was of the opinion that the plaintiff is capable of some employment; however, the Full Commission gives little weight to her opinion testimony because Ms. Scott never met with plaintiff and merely prepared an assessment based on information provided to her by the defendants. Stephanie Yost, who did meet with plaintiff, was also of the opinion that the plaintiff is capable of some employment. However, a review of her testimony shows that she was not aware of the extent of the plaintiff's physical restrictions or that the plaintiff is limited to driving only one hour per day.

13. Based on the totality of the evidence of record, and giving greatest weight to the plaintiff's treating physician, Dr. Woodburn, the Full Commission finds that the plaintiff has shown through medical evidence, in particular the testimony of Dr. Woodburn, that he is physically incapable of work in any employment as a consequence of the May 26, 2001 injury by accident.

14. As a result of his May 26, 2001 injury by accident, the plaintiff has been unable to earn any wages in any employment for the period of April 16, 2002, through the date of hearing before the Deputy Commissioner and continuing.

15. There is insufficient evidence upon which to find that the defendants' actions in defense of this case were based upon stubborn, unfounded litigiousness.

Based upon the stipulations of the parties as well as its own findings of fact, the Full Commission made the following conclusions of law:

1. The plaintiff sustained an injury by accident arising out of and in the course of his employment with the defendant-employer on May 26, 2001. N.C. Gen.Stat. § 97-2(6).

2. Based upon the credible evidence of record, the defendants have failed to prove that the plaintiff's termination was for misconduct or fault for which a non-disabled employee would also have been terminated. Seagraves v. Austin Company of Greensboro, 123 N.C.App. 228, 472 S.E.2d 397 (1996). Accordingly, the plaintiff did not constructively refuse suitable work. Id.; and N.C. Gen.Stat. § 97-32.

3. In order to award compensation to a claimant, the Commission must find that the claimant has shown...