{
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  "name": "MICHAEL P. CONKLIN v. CAROLINA NARROW FABRICS COMPANY",
  "name_abbreviation": "Conklin v. Carolina Narrow Fabrics Co.",
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  "casebody": {
    "judges": [
      "Judges LEWIS and WYNN concur."
    ],
    "parties": [
      "MICHAEL P. CONKLIN v. CAROLINA NARROW FABRICS COMPANY"
    ],
    "opinions": [
      {
        "text": "McCRODDEN, Judge.\nIn this appeal, we decide whether the trial court properly dismissed plaintiffs claim of retaliatory discharge when the complaint alleged a workers\u2019 compensation injury, inability to work, and dismissal on the basis of that disability. More specifically, the complaint avers that, while employed by defendant on 24 April 1991, plaintiff injured his back as he helped lift two steel beams weighing 200 pounds. He thereafter received disability and medical benefits under the Workers\u2019 Compensation Act. The complaint further alleges that on 20 August 1991, plaintiff\u2019s treating physician allowed him to return to work, but he was unable to perform the duties of his job due to the pain from his back injury. Plaintiff then contacted his boss, informing him that \u201che could not do the job.\u201d Defendant subsequently terminated plaintiff from his employment.\nIn considering a motion to dismiss for failure to state a claim, the trial court must accept as true all allegations of fact. Amos v. Oakdale Knitting Co., 331 N.C. 348, 351, 416 S.E.2d 166, 168 (1992). Dismissal is generally inappropriate except in those instances where the face of the complaint discloses some insurmountable bar to recovery, such as an unconditional affirmative defense which defeats the claim asserted or facts which deny the right to any relief on the alleged claim. Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 166 (1970). A trial court should not dismiss a complaint for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which he could prove in support of the claim. Id.\nThe ability of an employer to chill an employee\u2019s exercise of his or her rights under the Workers\u2019 Compensation Act through retaliatory discharge or demotion motivated our legislature to enact N.C.G.S. \u00a7 97-6.1. See Henderson v. Traditional Log Homes, 70 N.C. App. 303, 305, 319 S.E.2d 290, 292, disc. review denied, 312 N.C. 622, 323 S.E.2d 923 (1984). This statute, operative at the time plaintiff filed his complaint (subsequently repealed effective 1 October 1992), provides: \u201cNo 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 . . . .\u201d It does not, however, prohibit all discharges of employees who are involved in workers\u2019 compensation claims; it prohibits only a discharge made because the employee exercised his compensation rights. Morgan v. Musselwhite, 101 N.C. App. 390, 393, 399 S.E.2d 151, 153, disc. review denied, 329 N.C. 498, 407 S.E.2d 536 (1991). Plaintiff\u2019s complaint stated that \u201cthe defendant-corporation discharged the plaintiff because the plaintiff instituted, in good faith, a proceeding under the North Carolina Workers\u2019 Compensation Act and requested benefits pursuant to that Act.\u201d This allegation is sufficient to bring his claim within the purview of N.C.G.S. \u00a7 97-6.1.\nDefendant, nonetheless, contends that dismissal of plaintiff\u2019s complaint was proper due to the existence of statutory defenses set out in N.C.G.S. \u00a7 97-6.1 (c) and (e). Section 97-6.1 (c) states that an \u201cemployer shall have as an affirmative defense to this section . . . [the employee\u2019s] failure to meet employer work standards not related to the Workers\u2019 Compensation Claim.\u201d Defendant may not avail itself of this provision, however, because, if the employee\u2019s failure to meet the defendant\u2019s work standards was due to the injury which was the subject of the workers\u2019 compensation claim, his failure to meet these standards was related to his workers\u2019 compensation claim. Burrow v. Westinghouse Electric Corp., 88 N.C. App. 347, 352, 363 S.E.2d 215, 218, disc. review denied, 322 N.C. 111, 367 S.E.2d 910 (1988). Since plaintiff\u2019s complaint alleges that he was \u201cunable to continue working at his job because of the pain resulting from his back injury,\u201d he alleges facts sufficient to defeat application of the subsection (c) defense.\nN.C.G.S. \u00a7 97-6.1 (e), also argued by defendant, creates another narrow exception to the prohibition stated in subsection (a), reading:\nThe failure of an employer to employ, either in employment or at the employee\u2019s previous level of employment, an employee who receives compensation for permanent total disability, or a permanent partial disability interfering with his ability to adequately perform work available, shall in no manner be deemed a violation of this section.\nHence, pursuant to section 97-6.1 (e), an employer may discharge an employee on the basis of the employee\u2019s disability which prevents him from carrying out the duties for which he is employed. Johnson v. Builder\u2019s Transport, Inc., 79 N.C. App. 721, 723, 340 S.E.2d 515, 517 (1986). This subsection, however, applies only to employees who have received compensation for \u201cpermanent total disability\u201d or \u201cpermanent partial disability,\u201d terms that have distinct meanings under the North Carolina Workers\u2019 Compensation Act, N.C. Gen. Stat. \u00a7\u00a7 97-29, -31 (1991), but which are not the only types of disability for which a claimant may receive compensation. While plaintiff\u2019s complaint does allege that plaintiff received some disability payments, it does not aver that he received compensation for either type of disability required by subsection (e), and, it does not, therefore, allege an unconditional affirmative defense that would justify a Rule 12(b)(6) dismissal. In view of the foregoing, we are compelled to rule that plaintiff\u2019s complaint alleging retaliatory discharge was sufficient to withstand a Rule 12(b)(6) motion to dismiss. This ruling does not foreclose summary judgment for defendant upon a showing that it has paid compensation for permanent total disability or permanent partial disability.\nReversed.\nJudges LEWIS and WYNN concur.",
        "type": "majority",
        "author": "McCRODDEN, Judge."
      }
    ],
    "attorneys": [
      "George E. Francisco for plaintiff-appellant.",
      "Petree Stockton, by Barbara E. Ruark, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "MICHAEL P. CONKLIN v. CAROLINA NARROW FABRICS COMPANY\nNo. 9223SC1279\n(Filed 1 February 1994)\nLabor and Employment \u00a7 75 (NCI4th)\u2014 retaliatory discharge \u2014 workers\u2019 compensation claim \u2014 12(b)(6) motion denied\nA complaint alleging retaliatory discharge for filing a workers\u2019 compensation claim was sufficient to withstand a motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) where N.C.G.S. \u00a7 97-6.1 was operative at the time plaintiff filed his complaint; plaintiffs allegation that he had been discharged because he had instituted a workers\u2019 compensation claim in ' good faith brought his claim within the purview of N.C.G.S. \u00a7 97-6.1; the defense in N.C.G.S. \u00a7 97-6.1(c) for a discharge due to failure to meet work standards unrelated to the workers\u2019 compensation claim did not apply because plaintiff alleged that he was unable to continue his work because of his injury; the exception in N.C.G.S. \u00a7 97-6.1(e) for discharge on the basis of disability preventing employees from carrying out the duties for which they are employed applies only to permanent partial or total disability; and, while plaintiff alleged receipt of some disability payments, his complaint does not aver that he received compensation for either of those disabilities and therefore does not allege an unconditional affirmative defense.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 39 et seq.\nRecovery for discharge from employment in retaliation for filing workers\u2019 compensation claim. 32 ALR4th 1221.\nAppeal by plaintiff from order entered 25 September 1992 by Judge Julius A. Rousseau, Jr. in Alleghany County Superior Court. Heard in the Court of Appeals 27 October 1993.\nPlaintiff Michael P. Conklin brought this suit on 25 March 1992, claiming that his former employer, defendant Carolina Narrow Fabrics Company, violated N.C. Gen. Stat. \u00a7 97-6.1 (1991) by discharging him without just cause and solely because he pursued workers\u2019 compensation benefits. On 21 April 1992, defendant filed a motion to dismiss the complaint pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (1990). The trial court entered an order on 25 September 1992, dismissing the complaint. Plaintiff appeals from the order of dismissal.\nGeorge E. Francisco for plaintiff-appellant.\nPetree Stockton, by Barbara E. Ruark, for defendant-appellee."
  },
  "file_name": "0542-01",
  "first_page_order": 572,
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