Brooks v. Capstar Corp.

TYSON, Judge

dissenting.

The majority affirms the Commission’s Opinion and Award by attempting to distinguish this case from our Supreme Court’s decision in Johnson v. Southern Tire Sales & Serv., 358 N.C. 701 , 599 S.E.2d 508 (2004). Johnson is directly on point and controlling precedent. The Commission must make relevant and specific findings of fact, which it failed to do in this case. I vote to reverse and remand the Commission’s opinion and award which held that plaintiff: (1) complied with the vocational services provided by the defendants; and (2) did not constructively refuse to accept suitable employment. I respectfully dissent.

I. Johnson v. Southern Tire Sales & Service

In Johnson , our Supreme Court outlined the appropriate legal standard to be applied to determine whether a plaintiff constructively refused suitable employment. “An employer need not show that the employee was specifically offered a job by some other employer in *32 order to prove that the employee was capable of obtaining suitable employment.” Johnson, 358 N.C. at 709 , 599 S.E.2d at 514 (citing Trans-State Dredging v. Benefits Review Bd., 731 F.2d 199, 201 (4th Cir. 1984)). “Instead, the crucial question is whether the employee can obtain a job.” Johnson, 358 N.C. at 709 , 599 S.E.2d at 514 (citing Bridges v. Linn-Corriher Corp., 90 N.C. App. 397, 400-01 , 368 S.E.2d 388, 390-91 , disc. rev. denied, 323 N.C. 171 , 373 S.E.2d 104 (1988)).

N.C. Gen. Stat. § 97-32 (2003) provides that, “If an injured employee refuses employment procured for him suitable to his capacity he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified.” “[I]f an employer makes a showing that the employee refused a suitable job, the employee may respond by ‘producing evidence that either contests the availability of other jobs or his suitability for those jobs, or establishes that he has unsuccessfully sought the employment opportunities located by his employer.’ ” Johnson, 358 N.C. at 709 , 599 S.E.2d at 514 (quoting Burwell v. Winn-Dixie Raleigh, Inc., 114 N.C. App. 69, 74 , 441 S.E.2d 145, 149 (1994) (citation omitted)).

In Johnson , the defendants presented evidence to show the plaintiff constructively refused employment. 358 N.C. at 709-10 , 599 S.E.2d at 514 . “As a result [of this evidence], relevant findings by the Commission were required.” Id. at 710 , 599 S.E.2d at 514 . The Johnson Court noted the Commission made two factual findings. First, “in no manner were plaintiffs actions regarding these job leads inappropriate and he did not constructively refuse suitable employment.” Id. Second, the Commission found that, “because no job was ever offered to plaintiff, it cannot be found that he unjustifiably refused suitable employment.” Id.

Our Supreme Court concluded the first finding was “not supported by any evidence cited in the . . . opinion and award .... [It] should have contained specific findings as to what jobs plaintiff is capable of performing and whether jobs are reasonably available for which plaintiff would have been hired had he diligently sought them.” Id. (emphasis supplied). The Court determined the second finding was “legally inadequate,” as it completely negated the doctrine of constructive refusal. Id. at 710 , 599 S.E.2d at 515 .

Due to the Commission’s insufficient and “legally inadequate” findings, our Supreme Court reversed and remanded the matter for more specific factual findings. Id. at 711 , 599 S.E.2d at 515 .

*33 II. Fully Comply and Constructive Refusal

Defendants argue that plaintiff did not “fully comply” with her employer’s attempts to find her suitable employment following her injury in January 1997 and constructively refused suitable employment. They introduced the testimony of Ms. O’Kane and Dr. Carlton’s deposition as evidence.

Ms. O’Kane wrote in her vocational reports that plaintiff’s “motivation to return to work is questionable because of how she presents herself to the employer” and noted plaintiff always focused on activities she was incapable of performing. Her lack of motivation was apparent during the two interviews Ms. O’Kane set up and attended with plaintiff. First, plaintiff interviewed at Cracker Barrel in October 2000. She “interjected several times what duties she could not perform while the manager reviewed the job description.” Plaintiff presented a note to the manager detailing purported work restrictions from a doctor who was not authorized by the Commission to act as her treating physician. Afterwards, the interviewing manager confided in Ms. O’Kane that plaintiff seemed “defensive” and “he wasn’t sure whether [plaintiff] wanted to work or not,” even though Cracker Barrel was willing to accommodate its employees’ physical limitations. Ms. O’Kane testified that “there was a little bit of tension” and plaintiff “could have presented herself a little more favorably to the manager.”

Second, plaintiff interviewed with the Statesville Auto Auction in November 2000. The job entailed plaintiff reading vehicle identification numbers (“VIN”) off of motor vehicles, compare them to VIN listed on a sheet, and writing reports concerning vehicular damage. Plaintiff complained that she could not read the VIN on the sheet and that her hand would swell after writing. The interviewer offered to write reports for her, suggested she come back with some reading glasses, and expressed a desire to employ her. Again, Ms. O’Kane testified that plaintiff could have presented herself in a better manner. Ms. O’Kane wrote in her 14 November 2000 report after the interview that plaintiff “often focuses on what she cannot do versus what she can do, and expresses this to the employer.” She later testified that “it just added some issues... to possibly meeting with another employer in the future . . . .” Both the jobs available at Cracker Barrel and the Statesville' Auto Auction fit the work restrictions set out by plaintiff’s treating physician at the time.

*34 Dr. Carlton testified to plaintiff’s lack of motivation to return to work in his deposition. He noted plaintiff lacked economic motivation to return to work as shown by her application for social security disability payments and her continued receipt of defendants’ payments without working. Dr. Carlton indicated he offered constant encouragement for plaintiff to find suitable employment. At the time plaintiff interviewed with Statesville Auto Auction, she had no physical restrictions on her employment. Yet, she objected to performing any physical activity and failed to cite any restriction from her injury that would have prevented her from taking the job.

Finally, Dr. Carlton testified to other activities plaintiff was capable of and was actually performing as evidence of her capacity to work, such as light housework, driving, and babysitting and caring for her grandchildren. As in Johnson , the Commission failed to make any relevant findings of fact on defendants’ competent and uncontra-dicted evidence.

Several additional factors from the record are compelling. First, plaintiff was injured on 27 January 1997. No evidence shows that she has worked at gainful employment since her injury. Second, the record refers to just two interviews plaintiff attended over the course of almost eight years. Third, plaintiff admitted, “I just did whatever [Ms. O’Kane] was telling me to do.” The record is devoid of any indication that plaintiff was proactive in obtaining employment. Fourth, competent and uncontested testimony proved plaintiff is capable of physical activity beyond any limitations imposed by her injury. Fifth, the record fails to show that plaintiff contacted Dr. Carlton to inquire why he was delayed in responding to the Statesville Auto Auction job. Sixth, a Deputy Commissioner suspended compensation payments to plaintiff for failing to fully comply with vocational rehabilitation services provided by defendants after finding plaintiff “failed to present herself in a manner befitting a person genuinely seeking employment.”

These factors show that plaintiff has not appropriately, actively, or “diligently sought” suitable employment and has made no “reasonable effort to return to work,” as is required by law. Johnson, 358 N.C. at 708-09 , 599 S.E.2d at 514 (the applicable standard in reviewing the employee’s efforts is whether she “diligently sought” employment) (citations omitted); Effingham v. Kroger Co., 149 N.C. App. 105, 114-15 , 561 S.E.2d 287, 294 (2002) (A presumption exists that an employee will eventually recover and go back to work and they must make “reasonable efforts to go back to work.”). Doing “whatever [Ms. *35 O’Kane] was telling me to do” is insufficient to: (1) overcome defendants’ evidence of plaintiffs refusal to work; (2) overcome the presumption that plaintiff is capable of performing work; and (3) show that she “diligently sought” to return to work. The Commission’s opinion and award and the majority’s opinion places the entire burden to procure a job for plaintiff on defendants while allowing plaintiff every opportunity to sabotage defendants’ efforts. Plaintiff is allowed to be recalcitrant by sitting idly by and not make any effort to secure, much less “diligently seek,” employment.

These observations, combined with defendants’ uncontradicted proffered evidence, show: (1) suitable employment was available for plaintiff; and (2) she constructively refused and sabotaged efforts to procure suitable employment. See Johnson, 358 N.C. at 709-10 , 599 S.E.2d at 514 .

III. Commission’s Findings

The Commission made three findings of fact regarding whether plaintiff fully complied with defendants’ search for suitable employment.

13. The greater weight of the evidence of record shows that from December 20, 2001 to March 29, 2001 [sic], plaintiff was cooperative with the vocational case manager, Ms. O’Kane. Plaintiff did whatever Ms. O’Kane asked her to do and met with Ms. O’Kane on a regular basis.

14. Plaintiff did not intentionally sabotage vocational efforts regarding the security job available with Statesville Auto Auction.

15. The Full Commission finds by the greater weight of the credible evidence that plaintiff has complied with vocational rehabilitation as ordered by Deputy Commissioner Dollar on October 25, 2000.

(Emphasis supplied).

As in Johnson , the Commission made no specific findings “as to what jobs plaintiff is capable of performing and whether jobs are reasonably available for which plaintiff would have been hired had [she] diligently sought them.” 358 N.C. at 710 , 599 S.E.2d at 514 . The Commission’s findings are not supported by any competent evidence. See id. at 710-11 , 599 S.E.2d at 515 ; see also Dolbow v. Holland Industrial, 64 N.C. App. 695, 696 , 308 S.E.2d 335, 336 (1983), disc. *36 rev. denied, 310 N.C. 308 , 312 S.E.2d 651 (1984) (citation omitted) (review of the Commission’s order is two-fold: “(1) whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether . . . the findings of fact of the Commission justify its legal conclusions and decisions.”)

The Commission found that: (1) the Cracker Barrel job was not suitable for plaintiff pursuant to Dr. Carlton’s restrictions (despite such restrictions not existing at the time of her interview); and (2) plaintiff was not responsible for losing the job opportunity at Statesville Auto Auction. However, as our Supreme Court explained in response to similar findings in Johnson , “these findings alone are insufficient to support the Commission’s conclusions of law and do not cure the error resulting from the lack of findings concerning the suitability of alternative employment.” Id. at 710 , 599 S.E.2d at 515 .

IV. Conclusion

Johnson v. Southern Tire Sales & Service is controlling precedent at bar. I would reverse and remand the case to the Commission with instructions to make further and more specific findings of fact. In light of my view that this case must be remanded, it is premature to determine whether to award expenses to plaintiff. I respectfully dissent.