Spell v. Compass Group USA

In their Opinion and Award the majority finds that plaintiff's left knee condition is causally related to the compensable injury by accident on September 12, 1997 and that plaintiff did not unjustifiably refuse suitable employment. While I agree that the greater weight of the medical evidence supports a causal relationship between the injury by accident and plaintiff's knee, I do not agree that plaintiff was justified in his refusal of employment.

Plaintiff was offered the job of Telephone/Administrative Assistant by defendant-employer. This position was approved by Dr. Seidel. The job involved answering the telephone, dispatching maintenance calls, fielding calls for route people and taking messages from customers and clients. Because he worked for many years for defendant-employer, plaintiff was already familiar with routing and dispatching calls and with defendant-employer's customer base. The job paid the same wages as his pre-injury position. Plaintiff could sit while performing the job, but was also free to stand and walk at will. While the job required some simple data entry, defendant-employer provided training for this part of the job duties. The permanent full-time job was not make work and was not created specifically for plaintiff. The evidence showed that at least three other workers had been employed in the job position.

The job duties were within plaintiff's restrictions. On page 96 of the hearing transcript plaintiff was asked if he could physically perform the tasks involved in the Telephone/Administrative Assistant job. He answered "I don't dispute that. I think I could if someone had taught me how to use the computer, you know, and they said . . . that they'd teach me." Yet, despite several offers for this job, including the offer that the job still was available for plaintiff at the time of the Deputy Commissioner hearing, plaintiff refused to attempt to perform the job. Therefore, plaintiff unjustifiably refused suitable employment and his compensation benefits should have been suspended until his refusal ceased or until his shoulder surgery in July 2000 caused an additional period of disability.

For the foregoing reasons, I must respectfully dissent in part from the opinion of the majority in this case and would suspend plaintiff's compensation pursuant to N.C. Gen. Stat. § 97-32 based upon his unjustified work refusal.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER