Workman v. Rutherford Electric

• Decision Date: 07 June 2005
• Docket Number: No. COA04-491.,COA04-491.
• Citation: 613 S.E.2d 243
• Court: North Carolina Supreme Court
• Parties: Johnny E. WORKMAN, Employee, Plaintiff, v. RUTHERFORD ELECTRIC MEMBERSHIP CORPORATION, Employer, Self Insured (Federated Rural Electric Insurance Exchange, Third Party Administrator), Defendant.

Page 243

613 S.E.2d 243

Johnny E. WORKMAN, Employee, Plaintiff, v. RUTHERFORD ELECTRIC MEMBERSHIP CORPORATION, Employer, Self Insured (Federated Rural Electric Insurance Exchange, Third Party Administrator), Defendant.

No. COA04-491.

Court of Appeals of North Carolina.

June 7, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal by defendant from opinion and award entered 18 November 2003 by Commissioner Christopher Scott for the North Carolina Industrial Commission. Heard in the Court of Appeals 7 December 2004.

Daniel Law Firm, P.A., by Stephen T. Daniel and Warren T. Daniel, Morganton, for plaintiff-appellee.

Teague, Campbell, Dennis & Gorham, L.L.P., by J. Matthew Little and Tara Davidson Muller, Raleigh, for defendant-appellant.

TYSON, Judge.

Rutherford Electric Membership Corporation ("REMC") and Federated Rural Electric Insurance Exchange ("agent") (collectively, "defendant") appeal from opinion and award entered by the Full Commission of the North Carolina Industrial Commission ("the Commission") that awarded Johnny E. Workman ("plaintiff") total disability compensation. We affirm in part and remand for further findings of fact.

I. Background

Plaintiff was employed by REMC as a first-class lineman. His job included repairing damaged electrical power lines, which required him to climb utility poles. On 21 February 1997, plaintiff was injured during the course and scope of his employment when an electrical utility pole fell and landed across his abdominal area. Plaintiff suffered injuries to various parts of his body during the accident, which REMC immediately accepted as compensable. Defendant promptly began paying plaintiff temporary total disability benefits pursuant to Form 60 at the weekly rate of $512.00.

Plaintiff underwent two surgeries for internal injuries and digestive complications. In August 1997, he underwent surgery to remove a parathyroid gland. In November 1998, his gall bladder was removed and a hiatal hernia was repaired.

On 7 January 1998, plaintiff returned to work for REMC as an assistant staking technician earning an average weekly wage of $220.70. Due to the salary reduction, defendant paid plaintiff temporary partial disability benefits pursuant to Form 62 at varying rates depending on the number of hours plaintiff worked. Plaintiff was assigned physically demanding and difficult tasks. His job description, as written by REMC and submitted to plaintiff's doctors for approval, did not include the strenuous physical tasks that plaintiff was actually assigned to do, which included chopping right-of-ways with a bush axe and moving large quantities of dirt with a shovel. These physically demanding tasks aggravated plaintiff's medical condition and caused him to accumulate blood in his urine. As a result, plaintiff was hospitalized and diagnosed with recurrent gross hematuria.

After plaintiff was released, he returned to work and was assigned similar work duties. Plaintiff requested less strenuous jobs and was told none were available. On 9 September 1999, Dr. Leon Dickerson ("Dr. Dickerson") restricted plaintiff's employment to lifting no greater than thirty pounds occasionally, no prolonged bending, stooping, squatting, or climbing on ladders and no working on rough terrain. On 7 January 2000, Dr. Dickerson continued these work restrictions. Plaintiff was never assigned to light-duty work. According to Dr. Anthony H. Wheeler ("Dr. Wheeler"), plaintiff's treating physician, if plaintiff continued to perform on-the-job tasks, such as using a shovel and a bush axe, he would "eventually become unemployable."

Plaintiff became frustrated with the status of his employment and contacted Sean C. Cobourn, Esquire ("Cobourn"), a South Carolina attorney, regarding legal representation. Plaintiff testified Coburn told him a "joke" during a telephone conversation:

I asked the lawyer if there was anything that he could do with workmen's comp because they wasn't paying my doctor bills, they wasn't paying me — they was behind paying me and I was behind on my house payment and everything else. I said, "I need somebody to do something now." He [the attorney] laughed and he said, "Well," he said, "the only thing I know you can do is whip his ass and it will cost you five hundred dollars to do that."

Both plaintiff and Coburn laughed at this remark, and testified it was a "joke." Plaintiff's wife recalled plaintiff retelling the lawyer's "joke" to others.

During plaintiff's return to work, he became increasingly frustrated with his treatment by defendant. He expressed his discontent regarding medical treatment being denied, receipt of numerous medical collection letters, and difficult working conditions.

In response to plaintiff's increasing frustration, nurse caseworker, Kay Galvin ("Nurse Galvin"), submitted a request to the adjuster to approve psychological treatment for plaintiff on 18 January 2000. On 1 February 2000, plaintiff and Nurse Galvin were present at a doctor's office waiting for an appointment when plaintiff repeated the lawyer's "joke." Nurse Galvin reported plaintiff's remarks to REMC. On 7 February 2000, REMC terminated plaintiff for "workplace violence."

On 18 December 2000, plaintiff requested a hearing on claims of a changed medical condition, an inability to agree on the amount of benefits due, defendant's denial of certain medical treatment, and improper termination. After a hearing on 11 April 2003, the Commission entered its opinion and award on 18 November 2003 that: (1) awarded plaintiff total disability compensation "at the rate of $512.00 per week from 8 February 2000 and continuing until plaintiff returns to work or until further order of the Commission; (2) ordered defendant to pay for medical expenses incurred as a result of the compensable injury as may reasonably be required to [provide treatment for] . . . right knee condition, [ ] impotence, blood in urine, and problems with urination . . . and [ ] depression;" and (3) ordered defendant to provide plaintiff with vocational rehabilitation services. Defendant appeals.

II. Issues

Defendant contends the Commission erred by: (1) finding and concluding defendant's decision to terminate plaintiff's employment violated the test set forth in Seagraves v. Austin Co. of Greensboro, 123 N.C.App. 228, 472 S.E.2d 397 (1996); (2) finding plaintiff to be totally disabled; (3) not applying the doctrine of collateral estoppel with regard to plaintiff's termination; (4) finding that plaintiff's urological condition is causally related to his work accident and compensable; (5) finding that plaintiff's psychological condition is causally related to his work accident and compensable; and (6) ordering defendant to pay all of plaintiff's medical costs related to his work accident.

III. Standard of Review

On appeal from the Commission in a workers' compensation claim, our standard of review requires us to consider: whether there is any competent evidence in the record to support the Commission's findings of fact and whether these findings support the Commission's conclusions of law. The findings of fact made by the Commission are conclusive upon appeal when supported by competent evidence, even when there is evidence to support a finding to the contrary. In weighing the evidence the Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony and may reject a witness' testimony entirely if warranted by disbelief of that witness. Where no exception is taken to a finding of fact. . ., the finding is presumed to be supported by competent evidence and is binding on appeal.

Bass v. Morganite, Inc., ___ N.C.App. ___, ___, 603 S.E.2d 384, 386-87 (2004). "The Commission is the sole judge of the credibility of witnesses and may believe all or a part or none of any witness's testimony. . . ." Harrell v. J.P. Stevens & Co., 45 N.C.App. 197, 205, 262 S.E.2d 830, 835, disc. rev. denied, 300 N.C. 196, 269 S.E.2d 623 (1980) (citation omitted).

IV. Termination of Employment

Defendant contends the trial court erred in finding and concluding that REMC's decision to terminate plaintiff was not based upon plaintiff's misconduct or fault. We disagree.

A. Seagraves Test

According to Seagraves, the lawful termination of an employee for a reason unrelated to his disability and under circumstances justifying termination of any other employee constitutes a refusal to work. 123 N.C.App. 228, 472 S.E.2d 397. An employee who actually or constructively refuses suitable employment is barred from receiving benefits by N.C. Gen.Stat. § 97-32. Id. at 230, 472 S.E.2d at 399. The pertinent test is "whether the employee's loss of . . . wages is attributable to the wrongful act resulting in loss of employment, in which case benefits will be barred, or whether such loss . . . is due to the employee's work-related disability, in which case the employee will be entitled to benefits for such disability." Id. at 234, 472 S.E.2d at 401.

"[U]nder the Seagraves' test, to bar payment of benefits, an employer must demonstrate initially that: (1) the employee was terminated for misconduct; (2) the same misconduct would have resulted in the termination of a nondisabled employee; and (3) the termination was unrelated to the employee's compensable injury." McRae v. Toastmaster, Inc., 358 N.C. 488, 493, 597 S.E.2d 695, 699 (2004). The employer carries the initial burden to demonstrate all three elements by a greater weight of the evidence. Id. at 499, 597 S.E.2d at 702.

In McRae, our Supreme Court approved the Seagraves test:

In our view, the test provides a forum of inquiry that guides a fact finder through the relevant circumstances in order to resolve the ultimate issue: Is a former employee's failure to procure comparable employment the result of his or her job-related injuries or the result of the employee's termination for misconduct? In disputes like the one at bar, the critical area of inquiry into the circumstances of...