{ "id": 11919994, "name": "JAMES McCOY, Employee, Plaintiff v. OXFORD JANITORIAL SERVICE COMPANY, Employee; JEFFERSON PILOT FIRE & CASUALTY INSURANCE, Carrier, Defendant", "name_abbreviation": "McCoy v. Oxford Janitorial Service Co.", "decision_date": "1996-06-18", "docket_number": "No. COA95-1095", "first_page": "730", "last_page": "734", "citations": [ { "type": "official", "cite": "122 N.C. App. 730" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "441 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "149", "parenthetical": "defining \"suitable\" employment" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527096 ], "year": 1994, "pin_cites": [ { "page": "73", "parenthetical": "defining \"suitable\" employment" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0069-01" ] }, { "cite": "407 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "329 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554636, 2555469, 2556685, 2556307, 2553854 ], "opinion_index": 0, "case_paths": [ "/nc/329/0505-05", "/nc/329/0505-01", "/nc/329/0505-02", "/nc/329/0505-03", "/nc/329/0505-04" ] }, { "cite": "403 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "102 N.C. App 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525592 ], "pin_cites": [ { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0726-01" ] }, { "cite": "462 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793231, 793236, 793046, 793239, 793240 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0647-03", "/nc/341/0647-01", "/nc/341/0647-02", "/nc/341/0647-05", "/nc/341/0647-04" ] }, { "cite": "458 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "257" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 275", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914585 ], "year": 1995, "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0275-01" ] }, { "cite": "468 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "512" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 671", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919638 ], "year": 1996, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0671-01" ] }, { "cite": "374 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "485" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527187 ], "year": 1988, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0473-01" ] }, { "cite": "439 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "190", "parenthetical": "quoting Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 476, 374 S.E.2d 483, 485 (1988)" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 440", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522851 ], "year": 1994, "pin_cites": [ { "page": "447", "parenthetical": "quoting Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 476, 374 S.E.2d 483, 485 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0440-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "year": 1993, "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] } ], "analysis": { "cardinality": 469, "char_count": 8118, "ocr_confidence": 0.748, "pagerank": { "raw": 9.36582450626061e-08, "percentile": 0.5143446587040402 }, "sha256": "abd01436c4b2ee5c002647b24c62215419e01b6993d0eb026fd2cf90c8bbc0d2", "simhash": "1:2614ecca728b22be", "word_count": 1278 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C., and WALKER concur." ], "parties": [ "JAMES McCOY, Employee, Plaintiff v. OXFORD JANITORIAL SERVICE COMPANY, Employee; JEFFERSON PILOT FIRE & CASUALTY INSURANCE, Carrier, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nJames McCoy (plaintiff) appeals an Opinion and Award for the North Carolina Industrial Commission (Commission) concluding that after 11 January 1993 he is no longer entitled to temporary total disability compensation.\nOn 21 June 1991 the plaintiff, Oxford Janitorial Service Company and Jefferson-Pilot Fire and Casualty (defendants) entered into an \u201cAgreement for Compensation for Disability\u201d (I.C. Form 21) (hereinafter Agreement) and the Agreement was approved by the Commission on 26 July 1991. It acknowledged that the plaintiff had sustained, on 30 April 1991, an injury \u201cby accident arising out of and in the course of\u2019 his employment with Oxford Janitorial Service Company and that he sustained a disability as a consequence of the injury. At the time of his injury, plaintiff had been earning $240.00 a week, and pursuant to the Agreement, defendant was obligated to pay the plaintiff $160.00 a week. On 11 January 1993, the defendants requested permission to stop payment of compensation, which was denied and defendants thereafter requested a hearing.\nAt the hearing, James Seitz (Seitz), a senior vocational consultant, gave evidence concerning his attempts to find employment for plaintiff after the accident. The evidence showed that Seitz made numerous attempts to find plaintiff suitable employment, and in fact identified numerous jobs within plaintiff\u2019s restrictions. Several employers \u201cindicated [they] would consider the [plaintiff] for job openings.\u201d One employer was \u201cdefinitely\u201d interested in hiring plaintiff at an hourly wage of $6.30. Another employer informed the plaintiff, that a part-time \u201cjob would be available for him\u201d within thirty days but he was told by Seitz not to depend on it. Plaintiff \u201cshow[ed] a lack of motivation to develop a self-directed job search\u201d and made only a \u201cminimal effort\u201d in making contacts with potential employers. Seitz felt plaintiff was \u201cholding back\u201d in his attempts at obtaining any type of employment. Plaintiff also put his own restrictions on potential jobs, such as where he would work, how much the job had to pay, and on one occasion, not wanting to start work until the first part of the year \u201cbecause he had plans for the holiday season.\u201d Seitz also indicated that plaintiff was \u201chighlight[ing]\u201d certain aspects of his background, including his accident and physical problems, giving the impression to the employer that plaintiff \u201cwas not interested in going to work for him.\u201d Plaintiff brought out information that was not pertinent to the job, \u201cthat would lead an employer to be suspicious about an individual, to leave them with the impression that [he did not] want to work with them for whatever reason.\u201d\nDr. Giduz, treating plaintiff for depression, presented evidence that plaintiff remained totally disabled and was unable to work. The Commission, however, found Dr. Giduz\u2019s evidence to be not credible.\nThe Commission found that as of 11 January 1993 \u201cit was clear that [plaintiff] did not intend to return to work. He did not make reasonable efforts to find employment and sabotaged defendants\u2019 efforts to help him obtain another job.\u201d The Commission concluded that because plaintiff \u201ceffectively refused suitable employment by not making a reasonable effort to find employment and by sabotaging defendants\u2019 efforts to help him find a different job,\u201d he was \u201cnot entitled to compensation after\u201d 11 January 1993.\nThe issue is whether the defendant met its burden of rebutting the presumption that the plaintiff was disabled.\nAn employee in a workers\u2019 compensation claim is required to prove \u201cthat he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment.\u201d Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993). Once, however, a \u201cdisability is proven there is a presumption that it continues until \u2018the employee returns to work at wages equal to those he was receiving at the time his injury occurred.\u2019 \u201d Radica v. Carolina Mills, 113 N.C. App. 440, 447, 439 S.E.2d 185, 190 (1994) (quoting Watson v. Winston-Salem Transit Auth., 92 N.C. App. 473, 476, 374 S.E.2d 483, 485 (1988)). The approval by the Commission of a Form 21 Agreement establishes the employee\u2019s disability and that disability continues until the employer shows that the employee is no longer disabled. Stone v. G & G Builders, 121 N.C. App. 671, 674, 468 S.E.2d 510, 512 (1996); Dalton v. Anvil Knitwear, 119 N.C. App. 275, 284, 458 S.E.2d 251, 257, disc. rev. denied and cert. denied, 341 N.C. 647, 462 S.E.2d 507 (1995).\nOnce the employee establishes his disability (reduction in earning capacity), the employer has the burden of showing that \u201csuitable jobs are available\u201d and that he is capable of getting one of those jobs. Tyndall v. Walter Kidde Co., 102 N.C. App 726, 732, 403 S.E.2d 548, 551, disc. rev. denied, 329 N.C. 505, 407 S.E.2d 553 (1991. If the employer presents this evidence, the employee must present either evidence disputing the evidence presented by the employer or \u201cshow that [he] had unsuccessfully sought such other employment.\u201d Id.\nIn this case, the signing of the Form 21 agreement established a presumption of the plaintiffs disability. The defendant then presented evidence that some jobs were available to the plaintiff and that he was capable of getting those jobs. The Commission concluded that these jobs were suitable and there are findings that support that conclusion in that they show that plaintiff was capable of performing the jobs \u201cconsidering his age, education, physical limitations, vocational skills, and experience.\u201d Burwell v. Winn-Dixie Raleigh, 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994) (defining \u201csuitable\u201d employment). There is also evidence that at least one \u201csuitable\u201d job paid wages equivalent to or more than plaintiffs pre-injury wage of $240.00 a week. Therefore, defendants presented evidence successfully rebutting plaintiffs presumption of disability, and the burden shifted back to the plaintiff.\nThe Commission found that the plaintiff did not make a \u201creasonable effort to find employment\u201d and because this finding is supported by the record, the plaintiff failed in his obligation to seek employment opportunities located by the employer and thus failed to satisfy his burden. The Opinion and Award of the Commission denying the plaintiff any section 97-29 compensation is therefore affirmed.\nIn so holding we reject any suggestion that the plaintiff is not entitled to any further benefits because he has violated section 97-32. The statute does provide that an employee is not entitled to any benefits if he \u201crefuses employment procured [by his employer] for him suitable to his capacity.\u201d N.C.G.S. \u00a7 97-32 (1991). In this case, however, there is no evidence that the defendant \u201cprocured\u201d any job for the plaintiff. There is only evidence that several jobs were identified by the defendant within the plaintiffs restrictions and that several employer\u2019s indicated they would consider hiring him.\nAffirmed.\nJudges MARTIN, John C., and WALKER concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Smith, Foll\u00edn & James, L.L.P., by Seth R. Cohen, for plaintiff-appellant.", "Teague, Campbell, Dennis & Gorham, by Dayle A. Flammia, for defendant-appellees." ], "corrections": "", "head_matter": "JAMES McCOY, Employee, Plaintiff v. OXFORD JANITORIAL SERVICE COMPANY, Employee; JEFFERSON PILOT FIRE & CASUALTY INSURANCE, Carrier, Defendant\nNo. COA95-1095\n(Filed 18 June 1996)\nWorkers\u2019 Compensation \u00a7 238 (NCI4th)\u2014 employee\u2019s failure to make reasonable efforts to find work \u2014 sufficiency of evidence\nThe evidence was sufficient to support the Industrial Commission\u2019s findings that the injured plaintiff did not intend to return to work, did not make reasonable efforts to find employment, and sabotaged defendants\u2019 efforts to help him obtain another job, and such findings supported the Commission\u2019s conclusion that plaintiff was not entitled to temporary total disability compensation after a certain date.\nAm Jur 2d, Workers\u2019 Compensation \u00a7 399.\nAppeal by plaintiff from Opinion and Award for the Full Commission entered 19 July 1995. Heard in the Court of Appeals 22 May 1996.\nSmith, Foll\u00edn & James, L.L.P., by Seth R. Cohen, for plaintiff-appellant.\nTeague, Campbell, Dennis & Gorham, by Dayle A. Flammia, for defendant-appellees." }, "file_name": "0730-01", "first_page_order": 766, "last_page_order": 770 }