Medlin v. Weaver Cooke Construction, LLC , 229 N.C. App. 393 ( 2013 )

HUNTER, Robert C., Judge

Plaintiff Claude Medlin (“plaintiff’) appeals from the opinion and award of the North Carolina Industrial Commission terminating his ongoing temporary total disability compensation and awarding defendants Weaver Cooke Construction and Key Risk Insurance Company (collectively “defendants”) a credit for all temporary total disability compensation paid to plaintiff between 22 December 2010 and the date of termination. On appeal, plaintiff argues that the Industrial Commission erred in concluding that plaintiff had not met the burden of proving disability from 22 December 2010 to the present. After careful review, we affirm the opinion and award.

Background

In April 2006, Weaver Cooke Construction (“Weaver”) hired plaintiff. Plaintiff has a Bachelor’s of Science degree in civil engineering from North Carolina State University and, since graduating in 1974, he has worked in the commercial construction industry as a project engineer, project manager, and estimator. Plaintiff worked as a project manager and estimator for Weaver.

Plaintiff injured his right shoulder while moving furniture at a work-site in May 2008. On 22 December 2008, Weaver accepted plaintiff’s injury as compensable via Form 60, and plaintiff began receiving medical treatment. Plaintiff continued to work after his injury until being laid off on 21 November 2008. The parties stipulated in the pre-trial agreement that the reason for his layoff was a “reduction of staff due to lack of work.” During this time, Weaver had to undergo widespread layoffs, and the total number of employees for Weaver dropped from 160 to 65 and estimator positions dropped from 8 to 4. Plaintiff began receiving unemployment benefits approximately the first week of January 2009. In February 2009, plaintiff began receiving temporary total disability benefits from defendants. From early 2009 until late March 2011, plaintiff received overlapping unemployment benefits and temporary total disability benefits.

The vast majority of facts regarding plaintiff’s medical history are not necessary to address the issues in his appeal. In summary, after his injury, plaintiff began seeing Dr. Raymond Carroll for medical treatment. Dr. Carroll performed surgery on plaintiff’s shoulder on 10 February 2009, and plaintiff began physical therapy. Plaintiff experienced an increase in right shoulder pain until he was discharged from physical therapy in April 2009. Dr. Carroll placed plaintiff at maximum medical improvement and released him to return to work without restrictions. After experiencing an increase in pain, plaintiff returned to Dr. Carroll who recommended surgery. Although defendants authorized the surgery, plaintiff decided to seek a second opinion. After receiving authorization from defendants, plaintiff changed his physician to Dr. Kevin Speer who placed plaintiff at maximum medical improvement and assigned permanent work restrictions of no lifting greater than ten pounds, no climbing ladders, and no repetitive overhead activities.

Following his layoff, plaintiff sought employment within the construction industry. Plaintiff estimated that he had made hundreds of job inquiries after being laid off.

On 22 December 2010, defendants filed an “Application to Terminate Payment of Compensation,” arguing that plaintiff was no longer able to establish disability related to his injury since the only reason he could not obtain an estimator position with another employer was due to the economic downturn and not based on any physical restrictions. The matter came on for hearing before the Full Commission on 19 October 2012. Specifically, the Full Commission concluded that “[p]laintiff cannot establish disability secondary to his work-related injury at any time from 22 December 2010 to the presentf.]” Thus, it terminated plaintiff’s ongoing compensation and awarded defendants a credit for all disability compensation paid after 22 December 2010. Plaintiff timely appealed.

Arguments

Plaintiff argues that the Full Commission erred in concluding that he was unable to prove disability between 22 December 2010 and the date of termination. Specifically, plaintiff contends that because he has shown that he is incapable of earning the same wages he had before his injury, even after engaging in reasonable efforts to find work, he has met his burden of proving disability. We disagree.

Review of an opinion and award of the Full Commission “is limited to consideration of whether competent evidence supports the Commission’s findings of fact and whether the findings support the Commission’s conclusions of law.- This Court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.’ ” Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citation omitted) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)).

Disability means “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C. Gen. Stat. § 97-2(9) (2011). In order to prove ongoing total disability, plaintiff must prove (1) the incapacity of earning pre-injury wages in the same employment, (2) the incapacity of earning pre-injury wages in any other employment, and (3) that this incapacity to earn wages is caused by the injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). “A determination of whether a worker is disabled focuses upon impairment to the injured employee’s earning capacity rather than upon physical infirmity.” Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 707, 599 S.E.2d 508, 513 (2004); see also Peoples v. Cone Mills Corp., 316 N.C. 426, 437, 342 S.E.2d 798, 805 (1986) (holding that an injured employee’s earning capacity must be measured by the employee’s own ability to compete in the labor market).

The dissent utilizes the analytical framework set out in Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993) to assert that plaintiff has met his burden of production. The purpose of the four-pronged Russell test is to provide channels through which an injured employee may demonstrate the required “link between wage loss and the work-related injury.” See Fletcher v. Dana Corp., 119 N.C. App. 491, 494-99, 459 S.E.2d 31, 34-36 (1995) (noting that the Russell test is an evidentiary tool used to show a causal connection between injury and wage loss). The second prong of the test, which the dissent argues has been met by plaintiff, reads “[t]he employee may meet this burden [by producing] . . . evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment.” Russell, 108 N.C. App. at 765, 425 S.E.2d at 457. However, implied in this prong is the causal connection between the injury and the unsuccessful attempt at finding employment. See id. (“The burden is on the employee to show that he is unable to earn the same wages he had earned before the injury [fj (emphasis added). Indeed, the Fletcher court’s holding is based on its conclusion that “but for the work-related injury she sustained, [the plaintiff] would not have become unemployed and suffered wage loss in consequence of the unavailability of other employment.” Fletcher, 119 N.C. App. at 497, 459 S.E.2d at 35.

The dissent favorably quotes the Fletcher court’s observation that “the partially disabled employee’s only burden is to show he is unable to earn wages because of his injury, not that he must show that the economy or other factors are not the cause of unemployment.” Id. at 499, 459 S.E.2d at 37 (emphasis added). As is discussed in detail below, plaintiff failed to show any causal connection between his injury and subsequent wage loss. We therefore disagree with the dissent and find that the second prong of the Russell test has not been met.

In determining that plaintiff had not met his burden of proving disability, Full Commission found:

25. On 18 November 2010, Gregory B. Henderson, a vocational case manager and President of VocMed, conducted a targeted labor market survey in which two employers in the commercial construction industry of similar size and geographic location confirmed that someone with Plaintiff’s restrictions was physically capable of performing the job duties required by the Estimator position.

26. In an updated labor market survey conducted by Mr. Henderson on July 18, 2011, an additional three employers confirmed that someone with Plaintiff’s restrictions was physically capable of performing the job duties required by the Estimator position.

27. Mr. Henderson offered testimony as an expert in the field of vocational rehabilitation. Mr. Henderson opined that Plaintiff has the vocational skills and physical capabilities needed to perform work as an Estimator. He further opined that Plaintiff would be able to return to work as an Estimator but for the current economic downturn.

In other words, the Full Commission found that the only reason plaintiff is unable to find employment was based on the economic downturn and was not related to his injury. Based on these findings, the Full Commission concluded that “[a] [p]laintiff is unable to meet their [sic] burden of proving disability where, but for economic factors, the employee is capable of returning to his pre-injury position.” Thus, plaintiff’s inability to obtain his pre-injury wages was “attributable to large-scale economic factors,” not due to his injury, and he was not entitled to receive disability compensation.

In reaching this conclusion the Full Commission relied on Segovia v. J.L. Powell & Co., 167 N.C. App. 354, 608 S.E.2d 557 (2004). In Segovia, the plaintiff suffered compensable injuries by accident. 167 N.C. App. at 354, 608 S.E.2d at 557. His employer admitted liability and began paying temporary total disability benefits. Id. at 355, 608 S.E.2d at 558. During this time period, the plaintiff was laid off by his employer due to a decline in business. Id. After the employer filed a request to stop paying disability compensation, the Full Commission terminated the plaintiff’s compensation, concluding that his loss of earnings was not due to any disability arising from the injury. Id.

On appeal, this Court affirmed, noting that competent evidence supports the findings that the plaintiff was laid off solely to a decline in business and not due to any restrictions due to his injuries. Id. at 356-57, 608 S.E.2d at 559. Moreover, we found that these findings supported the Full Commission’s conclusion that the “plaintiff’s earning capacity [was] not currently affected by the injuries he suffered.” Id. at 357, 608 S.E.2d at 559. Thus, we affirmed the Full Commission’s determination that the plaintiff was not disabled pursuant to N.C. Gen. Stat. § 97-2(9). Id.

Like Segovia, plaintiff was laid off from his job as an estimator due to the economic downturn. Moreover, the uncontested findings of fact establish that plaintiff’s inability to earn his pre-injury wages is not attributable to his injury but is based solely on the large-scale economic downturn affecting the construction industry as a whole. Applying Segovia, plaintiff is unable to prove disability since his earnings capacity is not affected by his May 2008 injury. Therefore, we conclude that the Full Commission did not err in concluding that plaintiff is not currently disabled as a result of his injuries and not entitled to disability compensation.

Plaintiff argues that the Full Commission improperly applied the law from Segovia; instead, plaintiff contends that Eudy v. Michelin N. Am,., Inc., 182 N.C. App. 646, 654, 645 S.E.2d 83, 89, disc. rev. denied, 361 N.C. 426, 648 S.E.2d 211 (2007), and Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755, 760, 656 S.E.2d 676, 680 (2008), require a conclusion that plaintiff met his burden of proving disability by showing he had diligently searched for work. In other words, plaintiff seems to argue that, pursuant to Eudy and Graham, an employee whose earning capacity is affected solely by economic factors, not an injury, can still establish a showing of disability by introducing evidence that he has diligently searched for work.

Plaintiff’s rebanee is misplaced as the facts of Eudy and Graham are quite different from the present case. In Eudy, 182 N.C. App. at 654, 645 S.E.2d at 89, the laid off employee was “not physically able to work his regular-duty job” and he sought light-duty work he could perform within his physical restrictions. Likewise in Graham, 188 N.C. App. at 760, 656 S.E.2d at 680, the laid off employee was not physically capable of performing his former job and sought different work due to the physical restrictions of a hip injury. Here, unlike the employees in Eudy and Graham, plaintiff is physically able to perform his pre-injury job, and he is seeking and has applied for the same type of position. He is not subject to any restrictions that would affect his ability to work in his pre-injury position. Thus, Eudy and Graham are not applicable to the present case, and plaintiff’s argument is without merit. Instead, based on Segovia, the Full Commission did not err in concluding that plaintiff failed to meet his burden of showing he was disabled regardless of his reasonable attempts to find employment.

Conclusion

Based on the foregoing reasons, we hold that the Full Commission did not err in concluding that plaintiff’s incapacity to earn his pre-injury wages was not caused by his injuries. Therefore, we affirm the opinion and award of the Full Commission.

AFFIRMED.

Judge McCULLOUGH concurs.