Gayton v. Gage Carolina Metals Inc. ( 2002 )

WALKER, Judge,

concurring.

I agree with the majority that the Workers’ Compensation Act has not been superseded by federal law regarding the employment, referral, or recruitment of individuals who may be illegal aliens. Therefore, the obligations and burdens, as set forth in the Workers’ Compensation Act and our case law, of an employer of an injured illegal alien are no different from those of an employer whose injured employee is not an illegal alien.

The burden is on the employer to show that there are suitable jobs available for the employee which he is capable of performing “considering his age, education, physical limitations, vocational skills, and experience.” Burwell v. Winn-Dixie Raleigh, 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994); McCoy v. Oxford Janitorial Service Co., 122 N.C. App. 730, 733, 471 S.E.2d 662, 664 (1996). Here, the Commission found that “at the time of the hearing before the deputy commissioner, plaintiff was unable to return to suitable employment given his pain and restrictions and his work experience and qualifications.” There is competent evidence in the record to support the findings of the Commission. Thus, the employer has not met its burden and is required to continue payments under N.C. Gen. Stat. § 97-29 (1999).

However, once the employer does present evidence sufficient to meet its burden as set forth in Burwell and McCoy, the burden shifts back to the employee to either present evidence to dispute the employer or to show that he had unsuccessfully sought employment. McCoy, 122 N.C. App. at 733, 471 S.E.2d at 664. If “the plaintiff [does] not make a ‘reasonable effort to find employment,’ ” he has “failed in his obligation to seek employment opportunities located by the employer and thus failed to satisfy his burden.” Id. The failure of the plaintiff to receive the status of a legal alien would be a crucial fact for the Commission in its determination of whether plaintiff has made a reasonable effort to find employment and meet his burden as set forth in McCoy.

Here, we need not reach the analysis of whether the plaintiff has made such a reasonable effort to find employment because the employer has failed to present sufficient evidence to meet its burden. Until such time, the question of the illegal alien status of the plaintiff is not a factor for consideration by the Commission.