Tunell v. Resource mfg/prologistix

I respectfully dissent in this case. Plaintiff has a high school education with some additional post high school education, although he has not completed a degree. During his work career Plaintiff has mostly done jobs involving manual labor that includes standing up and lifting. In or around February, 2010, Plaintiff was assigned by Resource Management to work at a Caterpillar Plant in Sanford, North Carolina. As a part of the regular morning duties, Plaintiff inspected the forklift which he used as equipment during the performance of his duties.

On the morning of the alleged injury by accident, Plaintiff noted there was no inspection card present, nor was there an inspection clip that holds the inspection card on the forklift to which he was assigned. He nevertheless performed a visual inspection to the forklift. Plaintiff reported the absence of the inspection card to his supervisor, a Caterpillar employee who physically supervised Plaintiff on site. The Caterpillar employee instructed Plaintiff to go ahead and he would get him a card later, which he never did. Plaintiff testified that on prior occasions other employees have used forklifts when there with no inspection card on the forklift.

During orientation at Caterpillar, Plaintiff and other operators on site received training indicating that these forklifts should not be exited before coming to a complete stop. Nevertheless, other employees on the worksite at Caterpillar have on occasions operated the same type of forklift in the presence of supervisors, while engaging in the practice of exiting the back of the forklift while the forklift was still slightly in motion. No other employees or contract *Page 12 operators engaging in this practice in the presence of supervisory personnel as observed by Plaintiff were ever terminated for exiting the forklift in this manner.

The stand-up forklift upon which the claimant worked was electric powered and it contained what is called a "dead man's pedal" or "dead man's switch" in the floor. When the "dead man's pedal" is stepped on it starts the forklift and disengages the brakes. When you lift up and take your foot off the "dead man's pedal" the brakes are engaged. Immediately before the incident in question, Plaintiff had gone outside to the loading dock for purposes of taking cardboard, which may weigh as much as a ton, out of the cardboard compactor. In order to do this job, he had to first park and exit the forklift to deal with the compactor itself. Because two other employees on two other forklifts were in the location position where he would normally park, Plaintiff backed the forklift onto a ramp which leads down from the loading dock upon which the cardboard compactor rests. He backed the forklift onto the incline and stepped off the back of the forklift just after it came to a complete stop. This act should normally engage the brakes by virtue of the driver's foot coming off of the "dead man's pedal". Just as he exited, and while he was still at the back of the forklift, Plaintiff noticed that the forklift was beginning to roll down the hill. He jumped back on the forklift, engaged the "dead man's pedal" in order to start the forklift. Before he could start the forklift, the speed of the roll backwards down the hill increased until it struck a pallet with machinery on it trapping Plaintiff's left foot during the impact.

The impact was so great that it ripped the sole from Plaintiff's steel-toed boot on his left foot. Other employees had to extricate the Plaintiff from the forklift pinning him to the pallet bearing machinery. Plaintiff was immediately carried by the rescue responders to the local emergency room based on the injuries to his foot. His foot was put in a moon boot and he was *Page 13 given medication for pain.

Over the next couple of days Plaintiff filed two incident reports stipulated into the record describing what had taken place. Caterpillar decided that they did not want Plaintiff to continue at the Sanford plant because he violated a safety rule. On or about March 29, 2010, Plaintiff communicated with Derek Smith, his supervisor and contact person at Resource, MFG. On this occasion Mr. Smith admitted he had seen a videotape at Caterpillar of the incident which he did not feel was conclusive of Plaintiff's alleged violation of a safety protocol, including exiting the forklift while it was still in motion. Nevertheless, Mr. Smith indicated Caterpillar did not want Plaintiff to return to work because he allegedly had not filled out a safety card on this particular day to verify inspection of the vehicle. This firing is clearly pretextual.

Plaintiff testified that although he was not to go back to work at Caterpillar when he recovered from his foot injury, he believed he was being considered for work at Resource MFG. In fact, Plaintiff continued to drop off medical status notes to Resource MFG at their offices in Sanford all the way up until the Fall of 2010, thinking that when he had recovered from his injury he would have some continued job opportunities. During this same period of time, Resource MFG determined that Plaintiff was not going to continue his employment with them.

Plaintiff continues to have a stress fracture and to walk on crutches as a result of the March 23, 2009 injury by accident. Plaintiff has either required a cast or a special shoe with a brace for his left foot injury. Plaintiff's work has been limited to light duty without extensive walking.

Prior to going to work with Caterpillar, Plaintiff had already been working for Ross Dress-for-Less, which is an apparel store. His job was primarily in security, although he did some work as a greeter at the front door. In May of 2010, Plaintiff returned to work for Ross *Page 14 Dress-for-Less on a limited basis, with an accommodation where he could sit down with a stool because of his foot. When that accommodation of a stool was no longer available by Ross Dress-for-Less, he was no longer able to work. Plaintiff was able to return to Ross Dress-for-Less in September, but was still on limited duty with jobs not involving the walking and standing that he had performed before.

The undersigned finds that Plaintiff was terminated from his employment with Caterpillar for reasons of his compensable injury by accident resulting in loss time and not because of the reasons now attributed by Caterpillar and Resource MFG, for either violation of safety procedures by either the failing to complete a safety inspection card, or exiting a moving forklift. Even if Plaintiff did act in violation of the Caterpillar safety procedure by exiting the forklift while it was slightly still in motion, other persons working at the same Caterpillar plant had engaged in the same alleged violation of safety procedures, yet they had been permitted to remain at the Caterpillar plant and have not been terminated. This selective enforcement of safety rules should not stand.

I dissent from the majority opinion based upon the temporary partial disability benefits provided to Plaintiff. Defendants are not entitled to a credit for Plaintiff's part time earnings at Ross post injury by accident except to the extent those exceed his average part-time earnings with Ross pre-injury. Mark Hair v.Northwest Corporation, Self-Insured and Constitution State ServiceCompany, Servicing Agent, (IC No. 569750, Opinion and Award for the Full Commission by Bernadine Ballance, filed April 7, 1999). Defendants should be paying Plaintiff retroactively weekly compensation in the amount of $287.32 and in the future until further order of the Commission, except that the period for payment shall be a maximum of 300 weeks.

I would have found the following Conclusion of Law: *Page 15

Based upon the totality of the credible vocational and medical evidence of record, including his work for Ross Dress-for-Less, and as a result of his 23 March 2010 injury by accident, Plaintiff is entitled to be paid by Defendants temporary partial disability compensation at the rate of two thirds the difference between his average weekly wage at the time of his 23 March 2010 injury of $430.77 and the average weekly wages he earned thereafter while working for Ross Dress-for-Less commencing in May 2010 only to the extent those subsequent earnings exceed the average earnings he made pre-injury in the second job with Ross and continuing through the present until such time as he returns to work at his pre-injury wage level, or further Order of the Commission, but subject to the statutory maximum period of three hundred (300) weeks. G.S. § 97-30.

I would have awarded the following Award:

Defendants shall pay to Plaintiff temporary partial disability compensation at the rate of two thirds the difference between his average weekly wage at the time of his 23 March 2010 injury of $430 .77 and the average weekly wages he earned thereafter while working for Ross Dress-for-Less commencing in May 2010 only to the extent those subsequent earnings exceed the average earnings he made pre-injury in the second job with Ross and continuing through the present until such time as he returns to work at his preinjury wage level, or further Order of the Commission, but subject to the statutory maximum period of three-hundred (300) weeks. From the amounts having accrued, this compensation shall be paid to Plaintiff in a lump sum. This compensation is subject to the attorney's fee approved herein.

I further dissent and would award Plaintiff attorneys' fees from the Defendants. N.C. Gen. Stat. § 97-88.1.

S/________________ CHRISTOPHER SCOTT COMMISSIONER

2. An employee-employer relationship existed between the named employee and named employer.

3. The carrier liable on the risk is correctly named above; or the named employer is self-insured.

4. The employee's average weekly wage is $430.77.

5. Plaintiff-employee sustained an injury on or about March 23, 2010, with the exact date to be determined by the Industrial Commission.

6. The injury arose out of and in the course of employment and is compensable.

7. In addition to the Pre-Trial Agreement, at and subsequent to the hearing before the Deputy Commissioner, the parties submitted the following:

a. A Notebook of Various Stipulated Exhibits, which was admitted into the record and marked as Stipulated Exhibit (2), and which included the following:

i. Industrial Commission Forms;

ii. Defendants' Answers to Plaintiff's Discovery Request;

iii. Plaintiff's Time Sheets from Ross Dress-for-Less and;

iv. Medical Records.

b. A Thumb-drive "Video" produced by Caterpillar of Incident in Question, which is admitted into the record and marked as Stipulated Exhibit (3).

2. Plaintiff's employment history includes working in security, and in manual labor, light industrial jobs. Plaintiff also works for Ross Dress-for-Less, in a loss prevention job.

3. Plaintiff began working for Defendant-Employer, an employment agency that places employees in either manufacturing or logistical support positions. Through Defendant-Employer, Plaintiff was assigned to work at a Caterpillar plant in early February 2010. At that facility, Plaintiff was responsible for what was referred to as "dunnage." Plaintiff's duties in that capacity involved operating a stand-up forklift on which he moved pallets of materials to outside disposal bins or compactors. The outdoor area of the facility included a loading dock that had a ramp that went down to an asphalt parking lot. As part of the regular duties upon arrival, Plaintiff was to inspect the forklift he was to operate with the use of an inspection card.

4. Plaintiff testified before the Deputy Commissioner that on the morning of March 23, 2010, there was no inspection card or clip that holds the inspection card on the forklift to which he was assigned. Nonetheless, Plaintiff performed a visual inspection of the forklift, and reported the absence of the card to his supervisor at Caterpillar. Plaintiff testified that previously, other workers had used forklifts at the Caterpillar plant when there was no inspection card attached since the clips used either did not work properly or would be missing. Plaintiff testified that he told his supervisor, Jay, that there was no inspection sheet. Plaintiff further testified that no inspection card was ever provided.

5. The stand-up forklift upon which Plaintiff worked at Caterpillar was electrically *Page 4 powered and had what was referred to as a "dead man's pedal" or "dead man's switch" on its floorboard. When that pedal is stepped on, it starts the forklift and disengages the brakes. Conversely, when a worker lifts his/her foot off of the pedal, the brakes are engaged.

6. Plaintiff testified that on the morning of March 23, 2010, he exited the Caterpillar plant on his forklift for the purpose of taking cardboard out of a compactor. To accomplish this task, Plaintiff had to park his forklift and exit it. However, on the day in question, because two other employees and their forklifts were located where he usually parked, Plaintiff backed his forklift onto the ramp where the compactor is positioned. Plaintiff further testified that when he parked his forklift, he turned off the power, and lifted his foot off of the "dead man's pedal," which would normally engage the brakes. However, according to Plaintiff, just after he exited the forklift, it began to roll down the ramp and pick up speed. Plaintiff quickly got back on the forklift, and attempted to engage the "dead man's pedal" in order to start the forklift. However, before the forklift could be started, and due to its increasing speed down the ramp, it struck a pallet containing machinery and trapped Plaintiff's left-foot. The impact was so great that the sole of Plaintiff's steel-toed boot on his left-foot was ripped.

7. Defendants contend that the thumb drive-video provided by Caterpillar contradicts Plaintiff's testimony regarding the incident in question. Defendants assert that the video shows Plaintiff driving the forklift down the ramp, and exiting while it was still moving, resulting in the injury to his left-foot. Defendants do acknowledge that the Caterpillar video of the incident is of poor quality.

8. Following the incident of March 23, 2010, Plaintiff was transported by ambulance to a local emergency room for treatment of his left-foot. Plaintiff was provided a medical "moon" boot, prescribed pain medication and released. *Page 5

9. Approximately two days later, Plaintiff returned to Defendant-Employer to complete paperwork and incident reports for both Defendant-Employer and Caterpillar. Subsequent to March 23, 2010, Plaintiff has not returned to work for Defendant-Employer, either at the Caterpillar plant or otherwise. However, Plaintiff has continued working in his loss prevention job for Ross Dress-for-Less.

10. On approximately March 29, 2010, Plaintiff spoke by telephone with Mr. Derek Smith, his supervisor with Defendant-Employer. Mr. Smith informed Plaintiff that he had viewed the video provided by Caterpillar, but that in his opinion "there was nothing that was definitive from the video." Mr. Smith also informed Plaintiff that it appeared the forklift was still moving when Plaintiff exited it, and that Caterpillar had decided he could not return to work at their facility for a safety violation of not having the safety checklist. More specifically, Mr. Smith told Plaintiff that he violated the safety rule of not conducting a pre-shift inspection of the forklift, based upon the absence of an inspection card being found on the forklift following the incident.

11. Plaintiff testified that during his orientation at the Caterpillar plant, he and other operators were trained not to exit a forklift until it had come to a complete stop. Plaintiff further testified that regardless of this training, other workers at Caterpillar had exited forklifts while the forklifts were slightly in motion, and that this had occurred in the presence of supervisors.

12. There is no evidence of record upon which to find that any other employees or contract operators at Caterpillar were ever terminated for exiting a forklift in this manner.

13. Plaintiff testified that despite the decision made by Caterpillar regarding his inability to return to work at their facility, it was his understanding that after recovering from his left-foot injury, he would have the opportunity to return to work for Defendant-Employer. *Page 6

During his recovery period, Plaintiff continued to take medical status notes to Defendant-Employer's office into the autumn of 2010. However, during this same period of time, Defendant-Employer had determined that Plaintiff's employment was not going to continue.

14. Based upon the poor quality thumb drive-video provided by Caterpillar, and the preponderance of the credible evidence of record, the Full Commission finds that there is no evidence of record upon which to find that Plaintiff violated any safety rule on March 23, 2010 upon which to base his termination. However, assuming, arguendo, that Plaintiff did violate a safety rule on that date, there is no evidence of record that contradicts Plaintiff's assertion that other workers at the Caterpillar facility who had operated a forklift without having an inspection card, or who had exited a forklift while it was slightly moving had been terminated.

15. Based upon the preponderance of the credible evidence of record, the Full Commission finds that Plaintiff has not constructively refused suitable employment.

16. Plaintiff continues to have a stress fracture and to walk on crutches as a result of his March 23, 2010 injury by accident. Through the date of the hearing before the Deputy Commissioner, Plaintiff has periodically worn a cast. Based upon the preponderance of the evidence of record, any work Plaintiff could perform during this period of time was limited to light-duty jobs.

17. Prior to working at the Caterpillar plant, Plaintiff was already working for Ross Dress-for-Less, an apparel store. For that employer, Plaintiff's job was primarily security related, but he also did some work as a greeter. Since the beginning of May 2010, Plaintiff returned to work for Ross Dress-for-Less on a limited basis in a light-duty position that allowed him to sit due to his left-foot condition. Later, that accommodation was no longer available, and Plaintiff had to stop working for Ross Dress-for-Less. Thereafter, Plaintiff was able to again *Page 7 return to work for that employer, but remained on limited duty, performing jobs not involving the walking and standing he was able to perform prior to his March 23, 2010 injury by accident.

18. Plaintiff's left-foot condition and related medical treatment are the direct and natural result of and causally related to his March 23, 2010 injury by accident.

19. Based upon the preponderance of the credible vocational and medical evidence of record, including his work for Ross Dress-for-Less, and as a result of his March 23, 2010 injury by accident, the Full Commission finds that Plaintiff has been capable of earning limited wages during various periods of time.

20. Based upon the preponderance of the evidence of record, the Full Commission finds that Defendants did not defend this matter unreasonably.

2. North Carolina law requires that where the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury. Peagler v. Tyson Foods,Inc., 138 N.C. App. 593, 532 S.E.2d 207 (2000) (quotingClick v. Pilot Freight Carriers,300 N.C. 164, 265 S.E.2d 389 (1980)). Additionally, "the entirety of causation evidence" must "meet the reasonable degree of medical certainty standard necessary to establish a causal link."Holley v. ACTS, Inc., 357 N.C. 228, 581 S.E.2d 750 (2003); *Page 8 Young v. Hickory Bus. Furn.,353 N.C. 227, 538 S.E.2d 912 (2000).

3. Plaintiff's left-foot condition and related medical treatment are the direct and natural result of and causally related to his March 23, 2010 injury by accident. N.C. Gen. Stat. § 97-2(6); Click v. Pilot Freight Carriers,300 N.C. 164, 265 S.E.2d 389 (1980); Holley v. ACTS, Inc.,357 N.C. 228, 581 S.E.2d 750 (2003); Young v. Hickory Bus.Furn., 353 N.C. 227, 538 S.E.2d 912 (2000).

4. Based upon the preponderance of the credible evidence of record, the Full Commission concludes that Plaintiff has not constructively refused suitable employment. N.C. Gen. Stat. § 97-32.

5. Based upon the preponderance of the credible vocational and medical evidence of record, including his work for Ross Dress-for-Less, and as a result of his March 23, 2010 injury by accident, Plaintiff is entitled to be paid by Defendants temporary partial disability compensation at the rate of two thirds the difference between his average weekly wage at the time of his March 23, 2010 injury of $430.77 and the average weekly wages he earned thereafter while working for Ross Dress-for-Less commencing in May 2010 and continuing through the present until such time as he returns to work at his pre-injury wage level, or further Order of the Commission, but subject to the statutory maximum period of three-hundred (300) weeks. N.C. Gen. Stat. § 97-30.

6. As the result of his March 23, 2010 injury by accident, Plaintiff is entitled to have Defendants pay for all related medical expenses incurred or to be incurred, subject to the provisions of N.C. Gen. Stat. § 97-25.1, when the medical bills have been approved according to established Industrial Commission procedures. N.C. Gen. Stat. §§ 97-25; 97-25.1.

7. Because Defendants did not defend this matter unreasonably, Plaintiff is not *Page 9 entitled to sanctions in the form of attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1.

2. Defendants shall pay for all related medical expenses incurred or to be incurred by Plaintiff as the result of his March 23, 2010 injury by accident, subject to the provisions of N.C. Gen. Stat. § 97-25.1, when the medical bills have been approved according to established Industrial Commission procedures.

3. A reasonable attorney's fee in the amount of twenty-five percent (25%) of the compensation due Plaintiff under Paragraph One of this Award is approved for Plaintiff's counsel and shall be paid by Defendants as follows: twenty-five percent of any compensation which has accrued shall be paid directly to Plaintiff's counsel. Thereafter, every fourth compensation check shall be paid directly to Plaintiff's counsel.

4. Defendants shall pay the costs. *Page 10

This the ___ day of November 2011.

S/___________________ PAMELA T. YOUNG CHAIR

CONCURRING:

S/___________________ DANNY LEE McDONALD COMMISSIONER

DISSENTING:

S/___________________ CHRISTOPHER SCOTT COMMISSIONER