Johnson v. N.C. Department of Transportation

During oral argument before the Full Commission it appeared that this matter might be capable of resolution by the parties by enrolling the plaintiff in an apprenticeship program through State Vocational Rehabilitation or otherwise. Hopefully, such a program would serve a number of ends, including at least: (1) Plaintiff would be paid some wages by the new employer during the apprenticeship program, thus lessening any workers' compensation burden on the Defendant, and (2) plaintiff would learn new skills and, hopefully, gain new employment at the same or greater wages.

Accordingly, decision on this case on the record before the Full Commission will be held in abeyance for a period of 60 days, during which the Defendant is encouraged to find a suitable apprenticeship program, through State Vocational Rehabilitation or otherwise, and Plaintiff is encouraged to cooperate with Defendant in seeking a mutually-agreeable retraining program.

The parties are ordered to report jointly to the Full Commission on the progress, or lack of progress, toward seeking a mutually-agreeable solution, no later than 60 days from the filing date of this order if progress is being made and sooner if progress is not being made.

This 16th day of November 1998.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/_____________ J. HOWARD BUNN, JR. CHAIRMAN

Note: Chairman J. Howard Bunn Jr. signed this Opinion and Award prior to his retirement.

DISSENTING:

S/_____________ LAURA K. MAVRETIC COMMISSIONER

I respectfully dissent from the majority's decision to reverse the Deputy Commissioner's Opinion and Award. I agree with the Deputy Commissioner that plaintiff's benefits should be suspended for his refusal of the light duty job and his failure to cooperate with vocational efforts. N.C. Gen. Stat. § 97-32. The evidence showed that plaintiff refused to participate in the Human Resources Development Program (HRD) recommended by Wilkes Community College for out-of-work individuals who were trying to return to the job market. The courses chosen for plaintiff at the community college were based upon his test results and were specifically designed to prepare him for subsequent technical courses in which he had expressed an interest. The community college officials were aware of plaintiff's back problems and were willing to accommodate his special needs, including allowing him to stand up and walk around during his classes and providing alternative seating arrangements as needed. Plaintiff attended only two days of classes and then abandoned the program. None of plaintiff's doctors stated that plaintiff was unable to participate in the community college program. The Deputy Commissioner, who had the opportunity to observe plaintiff during his testimony at the hearing, decided that plaintiff unjustifiably refused to cooperate with treatment and vocational efforts. I would defer to the Deputy Commissioner's judgment on this issue.

I also believe that defendant's modified traffic control technician position, which was within plaintiff's restrictions, was a suitable job to effectuate his re-entry into the workplace and that plaintiff should have attempted to perform the job. Dr. Pikula approved this job, and Dr. Adams agreed that plaintiff should have attempted the work.

For the foregoing reasons, I must respectfully dissent from the majority in this case.

S/_____________ LAURA KRANIFELD MAVRETIC COMMISSIONER