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      {
        "text": "EAGLES, Judge.\nDefendant brings forth six assignments of error. After a careful examination of the record before us, we affirm.\nI.\nIn its first assignment of error, defendant argues that the trial court erred by excluding the Industrial Commission\u2019s findings that plaintiffs alleged injuries were not compensable. Defendant contends that the trial court should have admitted these findings based on the principles of res judicata. We disagree.\nRegarding the application of the doctrine of res judicata, our Supreme Court has stated:\nAs we recently noted in Duke 1988 [State ex rel. Utilities Commission v. Public Staff, 322 N.C. 689, 370 S.E.2d 567 (1988)]:\nThe doctrine of res judicata treats a final judgment as the full measure of relief to be accorded between the same parties on the same \u201cclaim\u201d or \u201ccause of action.\u201d C. Wright, Federal Practice and Procedure, \u00a7 4402 (1969). \u201cThe essential elements of res judicata are: (1) a final judgment on the merits in an earlier suit, (2) an identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or their privies in the two suits.\u201d Hogan v. Cone Mills Corporation, 315 N.C. 127, 135, 337 S.E.2d 477, 482 (1985).\nDuke 1988, 322 N.C. at 692, 370 S.E.2d at 569; see, e.g., In re Trucking Co., 285 N.C. 552, 560, 206 S.E.2d 172, 177-78 (1974). More specifically, in addressing the issue of whether a Commission order can be deemed res judicata this Court has held that \u201conly specific questions actually heard and finally determined by the Commission in its judicial character are res judicata, and then only as to the parties to the hearing.\u201d Utilities Commission v. Area Development, Inc., 257 N.C. 560, 570, 126 S.E.2d 325, 333 (1962) (emphasis added).\nState ex rel. Utilities Commission v. Thornburg, 325 N.C. 463, 468, 385 S.E.2d 451, 453-54 (1989).\nHere, defendant\u2019s res judicata arguments fail because this is a claim of retaliatory discharge under G.S. \u00a7 97T6.1 and is not the same cause of action that plaintiff brought before the Industrial Commission. A different set of rights was determined in each forum. \u201cNorth Carolina law has long prohibited the use of a previous finding of a court as evidence of the fact found in another tribunal. Masters v. Dunstan, 256 N.C. 520, 124 S.E.2d 574 (1962).\u201d Reliable Properties, Inc. v. McAllister, 77 N.C. App. 783, 787, 336 S.E.2d 108, 110 (1985), disc. review denied, 316 N.C. 379, 342 S.E.2d 897 (1986). In Masters, 256 N.C. at 524, 124 S.E.2d at 576-77, our Supreme Court held that:\nAn estoppel by judgment arises when there has been a final judgment or decree, necessarily determining a fact, question, or right in issue, rendered by a court of record and of competent jurisdiction, and there is a later suit involving an issue as to the identical fact, question or right theretofore determined, and involving identical parties or parties in privity with a party or parties to the prior suit. Cannon v. Cannon, 223 N.C. 664, 28 S.E.2d 240; Distributing Co. v. Carraway, 196 N.C. 58, 114 S.E.2d 535.\nThe purpose of the Industrial Commission hearing is to determine whether the employee has suffered an injury for which he or she is entitled to receive compensation under the Workers\u2019 Compensation Act. See Hanks v. Utilities Co., 210 N.C. 312, 186 S.E. 252 (1936); Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477 (1985); G.S. \u00a7 97-77; G.S. \u00a7 97-91. An employee\u2019s G.S. \u00a7 97-6.1 civil case is brought independently of the Industrial Commission hearing in order to protect the employee\u2019s right to file a workers\u2019 compensation claim before the Industrial Commission, notwithstanding the Commission\u2019s adverse findings regarding the employee\u2019s alleged injury. The public policy behind G.S. \u00a7 97-6.1 is to promote an open environment in which employees can pursue their remedies under the Workers\u2019 Compensation Act without the fear of retaliation from their employers. See Wright v. Fiber Industries, Inc., 60 N.C. App. 486, 299 S.E.2d 284 (1983); Henderson v. Traditional Log Homes, Inc., 70 N.C. App. 303, 319 S.E.2d 290, disc. review denied, 312 N.C. 622, 323 S.E.2d 923 (1984).\nII.\nIn its second assignment of error, defendant contends that the trial court erred by excluding defendant\u2019s evidence of similarly situated employees. One set of employees included those who were discharged for the poor quality of their work. Another set of employees included those who returned to their jobs without incident after filing workers\u2019 compensation claims. Defendant argues that the exclusion of this evidence was reversible error. We disagree.\nDefendant bases its argument on the manner in which \u201cdisparate treatment\u201d employment discrimination cases are litigated under federal law. Defendant asserts in its brief that \u201c[a] policy that is applied equally to all employees \u2014 even an unfair policy \u2014 does not constitute unlawful discrimination.\u201d In this regard, defendant argues that \u201c[a]n action for retaliatory discharge [under G.S. \u00a7 97-6.1] is analogous to an action for employment discrimination under federal law.\u201d We disagree.\nDefendant appears to argue that an employer who treats all employees alike could potentially discharge all employees who file workers\u2019 compensation claims and be free of the sanctions of the Workers\u2019 Compensation Act. Defendant\u2019s interpretation would circumvent the intent of the legislature and must not prevail.\nDefendant\u2019s reasoning is inconsistent with the legislature\u2019s intent in creating G.S. \u00a7 97-6.1 and with the overall goals of the Workers\u2019 Compensation Act. In Wright, 60 N.C. App. at 491, 299 S.E.2d at 287, this Court interpreted the legislature\u2019s intent in enacting G.S. \u00a7 97-6.1 as follows:\nClearly, G.S. 97-6.1 was intended to prevent employers from firing or demoting employees in retaliation for pursuing their remedies under the Workers\u2019 Compensation Act. If G.S. 97-6.1 were limited only to retaliatory acts which occurred after the employee filed his claim, an employer could easily avoid the statute by firing the injured employee before he filed. We do not think the legislature intended the statute to be so easily circumvented.\nThe courts of this State have recognized that the Workers\u2019 Compensation Act should be liberally construed so that benefits will not be denied by technical, narrow, or strict interpretation. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281 (1972); Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (1930). Liberally construed, the statute encompasses acts by employers intending to prevent employees from exercising their rights under the Workers\u2019 Compensation Act.\nThis assignment of error fails.\nIII.\nIn its third assignment of error, defendant argues that the trial court should not have submitted the issue of emotional distress damages to the jury, because this is not a form of \u201creasonable damages\u201d that a discharged employee may recover under G.S. \u00a7 97-6.1(b). We disagree.\nInitially, we note that in Johnson v. Ruark Obstetrics, 327 N.C. 283, 296-97, 395 S.E.2d 85, 92-93, reh\u2019g denied, 327 N.C. 644, 399 S.E.2d 133 (1990), our Supreme Court held that emotional distress damages may be based upon a claim for breach of contract or tort. G.S. \u00a7 97-6.1(b) provides that, \u201c[a]ny employer who violates any provision of this section shall be liable in a civil action for reasonable damages suffered by an employee as a result of the violation . . .\u201d (emphasis added). The phrase \u201csuffered by an employee,\u201d found in G.S. \u00a7 97-6.1(b), has been interpreted by this Court according to its plain meaning. Buie v. Daniel International, 56 N.C. App. 445, 447, 289 S.E.2d 118, 119, disc. review denied, 305 N.C. 759, 292 S.E.2d 574 (1982) (\u201cPunitive damages, by their very nature, are not damages \u2018suffered\u2019 by anyone. Rather, they are damages awarded to punish a wrongdoer, over and above the amount required to compensate for the injury.\u201d). Unlike the punitive damages sought by the plaintiff in Buie, emotional distress damages are a form of damages \u201csuffered by an employee\u201d and accordingly are recoverable as a form of \u201creasonable damages\u201d in a civil action brought by an employee under G.S. \u00a7 97-6.1. See also Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 434-35, 378 S.E.2d 232, 234 (1989), review dismissed, 326 N.C. 356, 388 S.E.2d 769 (1990); Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 488-90, 340 S.E.2d 116, 120-21, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986).\nIV.\nIn its next two assignments of error, defendant argues that the trial court erred by not granting its motion for judgment notwithstanding the verdict, or in the alternative, its motion for new trial. Defendant alleges that there was insufficient evidence to support the verdict. We disagree.\nUpon review of a motion for judgment notwithstanding the verdict, \u201c[t]he trial court must consider all the evidence in the light most favorable to the non-movant and must resolve in favor of the non-movant contradictions, conflicts and inconsistencies in the evidence.\u201d Williams v. Randolph, 94 N.C. App. 413, 418, 380 S.E.2d 553, 556, disc. review denied, 325 N.C. 437, 384 S.E.2d 547 (1989) (citations omitted). Plaintiff\u2019s recovery was based on G.S. \u00a7 97-6.1, which provides in pertinent part:\n(a) No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the North Carolina Workers\u2019 Compensation Act, or has testified or is about to testify in any such proceeding.\nTo recover under the statute, plaintiff must show that her discharge was caused by her good faith institution of the workers\u2019 compensation proceedings or by her testimony or her anticipated testimony in those proceedings. Hull v. Floyd S. Pike Electrical Contractor, 64 N.C. App. 379, 307 S.E.2d 404 (1983).\nPlaintiff provided sufficient evidence at trial to withstand the judgment n.o.v. motion. At trial, plaintiff introduced evidence of: (1) the events causing her injuries; (2) the injuries themselves; (3) the treatment she received for . each of the injuries; and (4) her filing the workers\u2019 compensation claims based upon those injuries. Additionally, plaintiff introduced \u201cquality lists\u201d created weekly by the defendant. These lists ranked each employee according to the percentage of defects that existed in each employee\u2019s work. These lists demonstrated that the quality of plaintiff\u2019s work was at or near the best during July 1987, the month following plaintiff\u2019s second injury.\nDefendant contends that plaintiff\u2019s discharge was not retaliatory because it has a \u201cneutral\u201d employee discharge policy, based upon an employee\u2019s continuous absence from work for more than six months. Here, plaintiff requested only a one month leave of absence at the time she was discharged. Plaintiff presented a witness, Dr. Joseph Jackson, who testified that \u201cthere was no reason to think that she [plaintiff] wouldn\u2019t be able to at least make an attempt to resume her normal employment\u201d after a one month leave of absence. Accordingly, we find no error in the trial court\u2019s denial of defendant\u2019s motions as there was sufficient evidence to support the jury\u2019s verdict.\nAs to defendant\u2019s motion for new trial, we find that the trial court correctly denied the motion. \u201cAn appellate court\u2019s review of a trial judge\u2019s discretionary ruling denying a motion to set aside a verdict and order a new trial is limited to a determination of whether the record clearly demonstrates a manifest abuse of discretion by the trial judge. Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982).\u201d Pittman v. Nationwide Mutual Fire Ins. Co., 79 N.C. App. 431, 434-35, 339 S.E.2d 441, 444, disc. review denied, 316 N.C. 733, 345 S.E.2d 391 (1986). The record here does not demonstrate an abuse of discretion by the trial court.\nV.\nFinally, defendant contends that the trial court erred by denying defendant\u2019s motion, filed approximately six weeks after trial, to compel plaintiff to undergo an independent medical examination, the purpose of which would be to determine whether she was capable of performing her duties as a knitter. We disagree.\nG.S. \u00a7 97-6.1(b) expressly provides reinstatement as a remedy for a successful retaliatory discharge claimant. \u201c[A]n employee discharged or demoted in violation of this section shall be entitled to be reinstated to his [or her] former position.\u201d Id. During pretrial discovery, defendant had the right to compel plaintiff to undergo an independent medical examination under Rule 35 of the North Carolina Rules of Civil Procedure. G.S. \u00a7 1A-1, Rule 35. Knowing the possible consequences of G.S. \u00a7 97-6.1 if plaintiff was successful, defendant chose not to exercise that right. Accordingly, we find no error in the trial court\u2019s refusal to order an independent medical examination of plaintiff.\nVI.\nFor the reasons stated, the judgment of the trial court is affirmed.\nAffirmed.\nJudges JOHNSON and PARKER concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Franklin Smith and Brian K. Flatley for plaintiff-appellee.",
      "Constangy, Brooks & Smith, by W. R. Loftis, Jr. and Robin E. Shea, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "VIRGINIA P. ABELS, Plaintiff, Appellee v. RENFRO CORPORATION, Defendant-Appellant\nNo. 9117SC839\n(Filed 1 December 1992)\n1. Evidence and Witnesses \u00a7 1380 (NCI4th)\u2014 retaliatory discharge claim for filing workers\u2019 compensation \u2014Industrial Commission findings on workers\u2019 compensation claim \u2014not res judicata\u2014 excluded\nThe trial court did not err in a retaliatory discharge action arising from a workers\u2019 compensation claim by excluding the Industrial Commission\u2019s findings that plaintiff\u2019s alleged injuries were not compensable. Although defendant contended that the court should have admitted the findings based on res judicata, this was a claim for retaliatory discharge under N.C.G.S. \u00a7 97-6.1 and not the same cause of action that plaintiff brought before the Industrial Commission.\nAm Jur 2d, Evidence \u00a7\u00a7 746, 747; Judgments \u00a7\u00a7 394 et seq.; Wrongful Discharge \u00a7\u00a7 199 et seq.\n2. Evidence and Witnesses \u00a7 219 (NCI4th)\u2014 retaliatory discharge claim \u2014 evidence of similarly situated employees \u2014no error\nThe trial court did not err in a retaliatory discharge action arising from a workers\u2019 compensation claim by excluding evidence of similarly situated employees. Defendant\u2019s contention that an action for retaliatory discharge under N.C.G.S. \u00a7 97-6.1 is analogous to an action for employment discrimination under federal law would circumvent the intent of the legislature.\nAm Jur 2d, Job Discrimination \u00a7\u00a7 1974 et seq.; Wrongful Discharge \u00a7\u00a7 25 et seq.\n3. Damages \u00a7 21 (NCI4th|\u2014 retaliatory discharge \u2014emotional distress \u2014properly submitted to jury\nThe trial court did not err in a retaliatory discharge action by submitting the issue of emotional distress damages to the jury. Emotional distress damages are a form of damages suffered by an employee and accordingly are recoverable as a form of reasonable damages in a civil action brought by an employee under N.C.G.S. \u00a7 97-6.1.\nAm Jur 2d, Job Discrimination \u00a7 2421; Wrongful Discharge \u00a7 256.\nDamages recoverable for wrongful discharge of at-will employee. 44 ALR4th 1131.\n4. Labor and Employment \u00a7 75 (NCI4th)\u2014 retaliatory discharge for filing workers\u2019 compensation \u2014 evidence sufficient\nThe trial court did not err in a retaliatory discharge action arising from a workers\u2019 compensation claim by denying defendant\u2019s motion for a judgment n.o.v. where plaintiff introduced evidence of the events causing her injuries, the injuries themselves, the treatment she received for the injuries, her filing workers\u2019 compensation claims, and \u201cquality lists\u201d created weekly by defendant, which showed that the quality of plaintiff\u2019s work was at or near the best during July, the month before her discharge. Furthermore, the trial court did not abuse its discretion by denying defendant\u2019s motion for a new trial.\nAm Jur 2d, Job Discrimination \u00a7\u00a7 2003 et seq.; Wrongful Discharge \u00a7\u00a7 237, 238.\n5. Labor and Employment \u00a7 75 (NCI4th)\u2014 retaliatory discharge for filing workers\u2019 compensation claim \u2014motion to compel medical exam after verdict \u2014denied\nThe trial court did not err by refusing to order an independent medical examination of plaintiff where plaintiff had won a retaliatory discharge action and the court had ordered reinstatement. Reinstatement is expressly provided as a remedy for a successful retaliatory discharge claimant in N.C.G.S. \u00a7 97-6.1(b). Defendant had the right to compel an independent medical examination under N.C.G.S. \u00a7 1A-1, Rule 35 during pretrial discovery but chose not to exercise that right, knowing the possible consequences if plaintiff was successful.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 504; Wrongful Discharge \u00a7 247.\nAppeal by defendant from judgment entered 25 March 1991 and order entered 26 March 1991 by Judge James M. Long in Surry County Superior Court. Heard in the Court of Appeals 15 September 1992.\nPlaintiff first worked for defendant, a hosiery manufacturer, from 1949 until the time of her pregnancy in 1962. Plaintiff resumed her employment as a knitter with defendant in 1972. At the time of her discharge on 19 August 1987, plaintiff\u2019s duties included overseeing approximately 40 knitting machines and inspecting the quality of manufactured socks.\nPlaintiff claimed that she was injured twice during her employment. Plaintiff alleged that she injured her' back and leg when she slipped and fell on some flat cardboard boxes while attempting to get a spool of yarn on 15 June 1984. Plaintiff reported her injury to defendant but did not file a workers\u2019 compensation claim at that time. Plaintiff alleged that her second injury occurred on 26 June 1987, when one of defendant\u2019s employees, in the process of moving boxes, struck her from behind, injuring the back of her head, her upper back, her neck, and her ribs.\nDefendant discharged plaintiff on 19 August 1987. Approximately six weeks after her termination, plaintiff filed workers\u2019 compensation claims for her alleged 15 June 1984 and 26 June 1987 injuries. Plaintiff filed suit against defendant on 25 November 1987, alleging that defendant violated G.S. \u00a7 97-6.1 by discharging her in retaliation for her filing the workers\u2019 compensation claims. Defendant argued that plaintiff was discharged because of the poor quality of her work and that prior to her discharge, plaintiff received several warnings from management to either improve the quality of her work or face termination.\nOn 31 October 1988, a Deputy Commissioner of the North Carolina Industrial Commission entered an order denying plaintiff compensation for her alleged injuries, ruling that the 1984 claim was barred by the statute of limitations and that the 1987 claim was not based on a compensable injury. This decision was affirmed by the Full Commission on 13 June 1989 and by the North Carolina Court of Appeals on 21 August 1990.\nA jury trial on the retaliatory discharge claim began on 22 January 1991. On 23 January 1991, the trial court ruled that defendant could not introduce as substantive evidence the findings of the Deputy Commissioner, the Full Commission, or the Court of Appeals. The trial court further ruled that plaintiff\u2019s testimony before the Deputy Commissioner could be used only for impeachment purposes. On 28 January 1991, the jury returned a verdict finding that plaintiff was wrongfully discharged and awarding her $82,200 in damages as follows: $60,000 for loss of earnings, $12,000 for loss of health insurance benefits, $7,200 for loss of defendant\u2019s contributions to Social Security, $2,000 for loss of profit sharing, and $1,000 for mental and emotional distress. On 25 March 1991, the trial court ordered plaintiff\u2019s reinstatement to her former position with defendant.\nOn 26 March 1991, the trial court denied defendant\u2019s motion for judgment notwithstanding the verdict, motion for a new trial, and motion to compel plaintiff to undergo a medical examination in the event of reinstatement. On 10 April 1991, the trial court granted defendant\u2019s motion to stay reinstatement of plaintiff as an employee pending appeal and motion to stay execution of the judgment pending appeal. On 29 April 1991, defendant again filed a motion to compel a medical examination of plaintiff. The trial court dismissed this motion on 3 May 1991. Defendant appeals.\nFranklin Smith and Brian K. Flatley for plaintiff-appellee.\nConstangy, Brooks & Smith, by W. R. Loftis, Jr. and Robin E. Shea, for defendant-appellant."
  },
  "file_name": "0135-01",
  "first_page_order": 163,
  "last_page_order": 172
}