Bowen v. Pass seymour/legrand

2. Liberty Mutual Insurance Company was the carrier on the risk for defendant-employer as of December 17, 2002.

3. Plaintiff was employed with defendant-employer on or about December 17, 2002.

4. On December 17, 2002, plaintiff sustained an injury by accident arising out of and in the course of her employment with defendant-employer when she injured her neck and right arm while lifting a tub to fill a machine.

5. Plaintiff's average weekly wage is $522.97, which yields a compensation rate of $348.65.

2. Plaintiff continued to work for defendant-employer and did not miss any time from work as a result of her injury. However, her job duties were switched to the packaging department since plaintiff was only able to perform one-handed work per her doctor's restrictions.

3. On or about February 27, 2003, an incident occurred between plaintiff and Kathy Price, a co-worker, where plaintiff attempted to close the co-worker's blouse. Plaintiff had commented that the co-worker's blouse needed to be buttoned. Following the incident, Kathy Price used vulgar language in the presence of other employees.

4. The following day, Mark Brombacker, the human resource manager for defendant-employer began an investigation of the incident based on the complaint of Kathy Price. Statements were inconsistent as to whether plaintiff actually touched the co-workers' breast. Plaintiff denied at hearing that she touched the co-worker's breast, but stated it was just an attempt to close her blouse.

5. Mark Brombacker testified that defendant-employer has a graduated policy of discipline. This policy includes verbal warnings, written warnings, reprimands and termination. It is within the discretion of the human resource person to determine the severity of the punishment based on the conduct.

6. Prior to her termination plaintiff had no disciplinary action or warnings in her file. She was immediately terminated without verbal warnings, written warnings or reprimands.

7. During his investigation, Mark Brombacker learned from plaintiff that Kathy Price had been falsely accusing plaintiff of being a lesbian.

8. On March 6, 2003, plaintiff was terminated from her employment while still restricted to one-arm duty work.

9. Mr. Brombacker testified that plaintiff's light duty job was working on a packaging line that had a planned reduction in force that was going to occur in April 2003. Plaintiff's light-duty position would not have been available once the reduction in force had occurred.

10. Plaintiff continued to experience problems with her neck and right arm. She continued to follow up with Dr. St. Clair, who prescribed anti-inflammatories and muscle relaxers. An MRI was recommended on her right shoulder. The MRI was performed on or about March 28, 2003, and showed no evidence of internal derangement. Dr. St. Clair continued to recommend that plaintiff proceed with physical therapy for her shoulder. On April 18, 2003, he changed his diagnosis to myofascial pain of her right upper back and released plaintiff from his care at that time.

11. Plaintiff continued to experience problems with her shoulder. She requested a second opinion regarding her condition pursuant to N.C. Gen. Stat. § 97-27. On May 19, 2003, she was seen by Dr. Stephen Furr. Dr. Furr diagnosed plaintiff with a cervical strain and recommended that she be set up for trigger point injections in an attempt to relieve her symptoms. Defendants would not approve this treatment. Dr. Furr last saw plaintiff on June 30, 2003. At that time, he felt that she should be restricted from doing any type of heavy work. Dr. Furr testified that he believed that plaintiff continued to have symptoms and that she might benefit from a pain clinic. However, he noted that he felt that she would probably retain a five-percent (5%) permanent impairment to her spine.

12. Plaintiff attempted to return to work at various jobs. She not only sought employment, she actually found some and tried it but could not work because of the pain. She attempted to return to work as a housekeeper and was unable to do the job due to her pain. Due to her inability to work, she and her husband had to declare bankruptcy in 2003.

13. Because of her compensable injuries, plaintiff has not been able to return to work since defendant-employer fired her.

14. Under Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228,472 S.E.2d 397 (1996), in order to show constructive refusal to work, an employer is required to show that the worker was terminated for misconduct, that the same misconduct would have resulted in the termination of a non-disabled employee, and that the termination was unrelated to the employee's compensable injury. If an employer is able to make this showing, then the burden shifts to the employee to show that his or her inability to find work is due to his or her disability.

15. The evidence in this matter shows that plaintiff was fired on March 6, 2003. However, defendant-employer did not follow its own policy regarding graduated disciplinary action. Plaintiff's conduct was not sufficient to warrant immediate termination, particularly based on the fact that she had no warnings or reprimands in her file at the time she was terminated. There was no sexual misconduct by plaintiff at work. If the attempted buttoning of the blouse constituted sexual misconduct, which the Full Commission finds it was not, no counseling or reassignment of work stations was ever offered to plaintiff.

16. The Full Commission finds that plaintiff has demonstrated that she remains disabled and is unable to find work as a result of her compensable injury. Plaintiff remained on restricted one-arm duty work after her termination for a period of time and has continued to experience symptoms that prevent her from performing regular duty work.

2. Defendant-employer has failed to show that plaintiff was terminated for misconduct, that the same misconduct would have resulted in the termination of a non-disabled employee, and that the termination was unrelated to her compensable injury. Seagraves v. Austin Co. ofGreensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996).

3. Plaintiff was disabled from March 7, 2003, to the present as a result of her continuing symptoms in her neck and shoulder. Plaintiff's disability was continuing at the time of the hearing before the Deputy Commissioner. N.C. Gen. Stat. § 97-29.

2. Defendants shall pay for, or shall reimburse those who paid, all medical treatment necessary to effect a cure, give relief, or lessen the period of disability including the trigger point injections that were previously recommended.

3. Defendants shall pay to plaintiff's counsel a reasonable attorney's fee in the amount of twenty-five percent (25%) of the compensation awarded herein. The portion of such fees that have accrued shall be paid directly to plaintiff's counsel in a lump sum; thereafter, defendants shall pay every fourth check to plaintiff's counsel.

4. Defendants shall pay the costs, including an expert witness fee of $400.00 to Dr. Stephen Furr, if not paid pursuant to prior order.

This 5th day of July 2005.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING IN PART AND DISSENTING IN PART:

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

I concur in the majority's decision that plaintiff's termination from employment was not shown to have been for misconduct for which a non-disabled employee would have been terminated pursuant to Seagraves v.Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996). However, I respectfully dissent from the majority's award of continuing total disability compensation to plaintiff.

Plaintiff's claim was accepted by defendants, but the burden of proving continuing disability remains with plaintiff. Sims v. Charmes/Arby'sRoast Beef, 142 N.C. App. 154, 542 S.E.2d 277 (2001). In order to meet the burden of proving disability, plaintiff must prove that she was incapable of earning pre-injury wages in either the same or in any other employment and that the incapacity to earn pre-injury wages was caused by plaintiff's injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593,290 S.E.2d 682 (1982).

An employee may meet the initial burden of production by producing one of the following: (1) medical evidence that she is physically or mentally, as a result of the work-related injury, incapable of work in any employment; (2) evidence that she is capable of some work, but that she has, after a reasonable effort, been unsuccessful in her efforts to obtain employment; (3) evidence that she is capable of some work, but that it would be futile because of preexisting conditions, such as age, inexperience, or lack of education, to seek employment; or (4) evidence that she has obtained other employment at wages less than her pre-injury wages. Demery v. Perdue Farms,Inc., 143 N.C. App. 259, 545 S.E.2d 485 (2001); Russell v. Lowes ProductDistribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993). When a plaintiff meets her burden of showing disability, the burden then shifts to defendants to produce evidence that suitable jobs are available for the employee and that the employee is capable of obtaining a suitable job, taking into account both physical and vocational limitations. Demery v.Perdue Farms, Inc., supra.

In the case at bar the greater weight of the evidence shows that after her termination and as of June 30, 2003, plaintiff was capable of some work, that it would not have been futile for her to look for work due to pre-existing conditions, that plaintiff did not make a reasonable effort to find other employment, and that no doctor took her out of work. Demery v.Perdue Farms, Inc., supra. On April 18, 2003, Dr. St. Clair released plaintiff to return to full-duty work with no restrictions. Dr. Furr subsequently released plaintiff to her regular job with no heavy lifting on June 30, 2003. Plaintiff testified that she tried cleaning jobs at Lowe's and at a cleaning service where a friend worked, but was unable to perform the job duties. While plaintiff is to be commended for her brief but unsuccessful attempts to return to work, the evidence shows that she did not make a reasonable job search. In fact, at the time of the Deputy Commissioner's hearing, plaintiff was attending community college to be trained in secretarial skills and had removed herself from the employment market.

After June 30, 2003, plaintiff failed to prove that she was unable to obtain employment after a reasonable effort or that it was futile for her to seek employment because of other factors. She was capable of some work and no doctor took her out of work. Russell v. Lowes ProductDistribution, supra. It is my opinion that plaintiff is not entitled to any compensation after June 30, 2003. N.C. Gen. Stat. § 97-29. Therefore, I must respectfully dissent in part from the Opinion and Award of the majority.

S/______________________ LAURA KRANIFELD MAVRETIC COMMISSIONER