holding it was futile to require the plaintiff to establish his unsuccessful search for employment as proof of disability where the plaintiff had little education, was of such advanced age that after the time it would take to obtain more education, "he would have scant hope of using it," the plaintiff's highest educational level was entry into the sixth grade, the plaintiff-then fifty-seven-had worked only in textile manufacturing since he was twenty-five years old performing only physically demanding, unskilled work, where there was evidence that he had no experience with even simple household financial matters, as his wife filed taxes and balanced the checkbook, and where an expert testified that the plaintiff could not undertake significant gainful employment existing in the regional and national economies in significant numbers
How later courts described this case
- holding it was futile to require the plaintiff to establish his unsuccessful search for employment as proof of disability where the plaintiff had little education, was of such advanced age that after the time it would take to obtain more education, "he would have scant hope of using it," the plaintiff's highest educational level was entry into the sixth grade, the plaintiff-then fifty-seven-had worked only in textile manufacturing since he was twenty-five years old performing only physically demanding, unskilled work, where there was evidence that he had no experience with even simple household financial matters, as his wife filed taxes and balanced the checkbook, and where an expert testified that the plaintiff could not undertake significant gainful employment existing in the regional and national economies in significant numbers
- stating that where "an employee's effort to obtain employment would be futile because of age, inexperience, lack of education or other preexisting factors, the employee should not be precluded from compensation for failing to engage in the meaningless exercise of seeking a job which does not exist"
- holding that an injured employee shall retain benefit eligibility if the employee’s age, inexperience, lack of education, or any other preexisting factor preclude the employee from procuring alternative employment
- reasoning earning capacity “must be measured . . . by the employee’s own ability to compete in the labor market, . . . [because] [w]ages paid by an injured employee out of sympathy, or in consideration of his long service with the employer, clearly do not reflect his actual earning capacity[]”
Written by the judges who cited it.
The opinion
Justice Meyer
dissenting.
The claimant here was a 46-year-old man suffering from “moderate pulmonary impairment.” The majority flatly concedes that “all the evidence tends to show plaintiff is capable of performing the physical requirements” of an “entirely sedentary” job. As to the medical evidence in particular, the majority says, “The medical testimony is uncontroverted that plaintiff is capable of this kind of totally sedentary employment. His physician, Dr. Kilpatrick, stated: ‘So long as he is not exposed to physical exertion, then he is perfectly capable of performing a sedentary job.’ ” Indeed, the majority refers to the “uncontradicted testimony by Drs. Battigelli and Kilpatrick which, describing plaintiff’s condition as a moderate pulmonary impairment, agreed, from a medical standpoint, that plaintiff can perform sedentary employment.”
Having established that the claimant here is capable of doing sedentary work, the burden is on the claimant to prove that no such work is available to him. The only evidence even remotely pertinent to this question comes from Dr. Thomas K. White, a private psychologist. That evidence, as the majority concedes, is only to the effect that claimant “could not undertake significant *446 gainful employment existing in the regional and national economies in significant numbers.” This was precisely the “finding” of the Commission —that the claimant “could not undertake significant gainful employment existing in the regional and national economies in significant numbers.” By no stretch of the imagination can this recitation of the evidence given by Dr. White be considered a proper finding. Even if it had been an adequate finding of fact, it does not address the availability of sedentary jobs in the local economy. Nor does it speak to jobs that might be available in less than “significant numbers.”
The majority has stretched the record before us beyond the breaking point in stating that “[h]ere the Commission found in effect that because of plaintiffs lack of job skills there is no available sedentary employment for which plaintiff is qualified.” Most assuredly, it cannot be said that the Commission’s recitation of Dr. White’s testimony was “in effect” a finding that there is no available sedentary employment for which the claimant is qualified.
It is common knowledge that there are numerous sedentary jobs in the economy —the parking lot attendant who simply receives money for parking, the factory timekeeper whose only job is to see that incoming and outgoing workers properly punch their time cards, the employee who takes orders by phone, the bank or factory guard who simply clocks people in and out of buildings, the cashier at the car wash, and perhaps a hundred others. Having determined that the claimant here is capable of sedentary work, surely it is not too much to ask that someone testify that no such jobs are available locally to this claimant. This case should be remanded to the Commission for a proper finding regarding the availability of sedentary jobs to Mr. Peoples.
This claim was litigated, argued, and briefed in the Court of Appeals and argued and briefed in this Court on the issue of whether the claimant is required to accept what the majority characterizes as a “make-work” gob tendered to him by his employer, Cone Mills. Little or no attention has been paid throughout this proceeding to the question of whether there were available to the claimant other sedentary jobs in the local economy. The evidence in the record before us on this issue is inade *447 quate, and certainly there is no proper finding by the Commission on this issue. The conclusion on this issue by the majority is unsupported in the record. I vote to remand this case to the Commission for an appropriate hearing and a proper finding regarding the availability of sedentary jobs to the claimant.