{ "id": 11913783, "name": "ADAM ARRINGTON, Employee-Plaintiff v. TEXFI INDUSTRIES, Employer-Defendant, and AMERICAN POLICYHOLDERS INSURANCE COMPANY, Carrier-Defendant", "name_abbreviation": "Arrington v. Texfi Industries", "decision_date": "1996-08-06", "docket_number": "No. COA95-1124", "first_page": "476", "last_page": "481", "citations": [ { "type": "official", "cite": "123 N.C. App. 476" } ], "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": "89 ALR3d 783", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "entitled to benefits if physically or mentally incapable of working" } ], "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", "parenthetical": "entitled to benefits if physically or mentally incapable of working" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "421 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505409, 2504968, 2504747, 2505141, 2504699 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0345-01", "/nc/332/0345-02", "/nc/332/0345-05", "/nc/332/0345-04", "/nc/332/0345-03" ] }, { "cite": "418 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "519" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314059 ], "year": 1992, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0658-01" ] }, { "cite": "347 P.2d 710", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 645839 ], "year": 1959, "pin_cites": [ { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/ariz/87/0056-01" ] }, { "cite": "407 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554636, 2555469, 2556685, 2556307, 2553854 ], "year": 1991, "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", "year": 1991, "pin_cites": [ { "page": "550" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525592 ], "year": 1991, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0726-01" ] }, { "cite": "441 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "149", "parenthetical": "quoting Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 730, 403 S.E.2d 548, 550, disc. review denied, 329 N.C. 505, 407 S.E.2d 553 (1991)" } ], "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": "quoting Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 730, 403 S.E.2d 548, 550, disc. review denied, 329 N.C. 505, 407 S.E.2d 553 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0069-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "683" }, { "page": "684" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "595" }, { "page": "596-597" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "342 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 18, "year": 1986, "pin_cites": [ { "page": "804" }, { "page": "806" }, { "page": "806" }, { "page": "807", "parenthetical": "emphasis added" }, { "page": "805" }, { "page": "800" }, { "page": "800" }, { "page": "801" }, { "page": "801" }, { "page": "802" }, { "page": "806" }, { "page": "807" }, { "page": "807" }, { "page": "804" }, { "page": "806", "parenthetical": "emphasizing testimony about \"make work\" nature of plaintiff's job provided by defendant's personnel manager and a vocational rehabilitation and job skills expert" }, { "page": "807" } ], "opinion_index": 0 }, { "cite": "316 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704100 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "434" }, { "page": "438-439" }, { "page": "434-435" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0426-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "pin_cites": [ { "page": "(9)", "parenthetical": "emphasis added" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 701, "char_count": 14030, "ocr_confidence": 0.754, "pagerank": { "raw": 1.3403310451475542e-07, "percentile": 0.6310087962657283 }, "sha256": "0540117dc3a04678eec4af51ef757287437027a3f147c121369521e09a4e233f", "simhash": "1:9014770384cd381a", "word_count": 2174 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and LEWIS concur." ], "parties": [ "ADAM ARRINGTON, Employee-Plaintiff v. TEXFI INDUSTRIES, Employer-Defendant, and AMERICAN POLICYHOLDERS INSURANCE COMPANY, Carrier-Defendant" ], "opinions": [ { "text": "MARTIN, Mark D., Judge.\nDefendants Texfi Industries, Inc., and American Policyholders Insurance Company (collectively defendants) appeal the North Carolina Industrial Commission\u2019s award of permanent and total disability benefits to plaintiff Adam Arrington (Arrington).\nArrington was employed by Texfi Industries (Texfi) for approximately sixteen years prior to his injury on 12 August 1988. At the time of his injury, Arrington was responsible for mixing chemicals to make sizing used to thicken yarn (chemical mixer position). Arrington sustained bums to the lower half of his body when the sizing chemicals boiled over the side of the mixing vat. On 17 August 1988 the parties executed I.C. Form 21, Agreement for Compensation for Disability, which was approved by the Commission on 12 September 1988.\nOn 2 January 1989 Arrington returned to light-duty work at the suggestion of Dr. H. D. Peterson, his treating physician. After attempting to return to his chemical mixer position, Arrington complained of chronic fatigue and weakness. Dr. Peterson diagnosed Arrington as suffering from neurasthenia \u2014 an affliction of unknown origin which induces a \u201cweakness of the spirit and the body.\u201d\nSince 2 January 1989 Arrington has remained in the continuous employ of Texfi. At present, Arrington holds a custodial position which requires him to sweep, clean, empty wastebaskets, monitor machines, drive a forklift, operate a beam truck and pull beams, use a chain hoist to unload beams, cut waste yarn from beams, and perform other general custodial duties. Further, the hourly wage Arrington earns in the custodial position is higher than in his pre-injury chemical mixer position.\nOn 28 May 1991 defendants filed I.C. Form 28B, Insurance Carrier\u2019s Report of Compensation and Medical Paid. On 22 July 1992 Arrington filed I.C. Form 33, Request for Hearing. In an opinion and award filed 18 August 1994, Deputy Commissioner Lawrence B. Shuping, Jr., concluded Arrington was not entitled to permanent and total disability benefits. The Full Commission reversed Deputy Commissioner Shuping and awarded Arrington permanent and total disability benefits.\nOn appeal defendants contend the Commission erred by finding: (1) Arrington\u2019s light-duty job is not necessary to Texfi\u2019s business operations; (2) Arrington\u2019s chronic fatigue and weakness was caused by his burns; and (3) Arrington is physically and mentally incapable of earning his same pre-injury wages in the same or other employment. Defendants also allege Arrington provided insufficient notice of his intent to seek permanent and total disability benefits and, therefore, defendants were unprepared to present evidence at the hearing.\nWe consolidate defendants\u2019 assignments of error into one issue\u2014 whether Arrington is entitled to permanent and total disability benefits under section 97-29 of the Workers\u2019 Compensation Act (Act).\n\u201cThe term \u2018disability\u2019 means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or anv other employment.\u201d N.C. Gen. Stat. \u00a7 97-2(9) (1991) (emphasis added). Disability therefore refers to a diminished capacity to earn money rather than physical infirmity. Peoples v. Cone Mills Corp., 316 N.C. 426, 434, 342 S.E.2d 798, 804 (1986).\nTo establish disability, a claimant must prove:\n(1) [he] was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) [he] was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) [his] incapacity to earn was caused by [his] injury.\nHilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). More particularly, any person claiming benefits under section 97-29 \u201chas the burden of proving that he is, as a result of the injury arising out of and in the course of his employment, totally unable to \u2018earn wages which . . . [he] was receiving at the time [of injury] in the same or any other employment.\u2019 \u201d Burwell v. Winn-Dixie Raleigh, 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994) (quoting Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 730, 403 S.E.2d 548, 550, disc. review denied, 329 N.C. 505, 407 S.E.2d 553 (1991)) (emphasis added).\nIn the present case, Arrington currently holds a custodial position at Texfi. The custodial position pays an hourly wage in excess of what Arrington received as a chemical mixer, his pre-injury position. Therefore, as recognized by Deputy Commissioner Shuping, we are confronted with a factual conundrum \u2014 Arrington seeks permanent and total disability benefits even though he: (1) has been employed by Texfi since recovering from his injury; and (2) presently earns a higher hourly wage than before his injury.\nDefendants argue the custodial position is \u201cany other employment\u201d within the meaning of section 97-2(9) and, consequently, Arrington is not entitled to permanent and total disability benefits.\nIt is well settled, however, that not every position offered to a claimant is considered \u201cany other employment\u201d under section 97-2(9). See Peoples, 316 N.C. at 438-439, 342 S.E.2d at 806. Specifically, an employer may not avoid liability under the Act by creating or modifying a position \u201cwhich the employee under normally prevailing market conditions could find nowhere else . . . .\u201d Id. at 439, 342 S.E.2d at 806. As stated by our Supreme Court:\nan employer may . . . avoid liability under the Act by offering an injured employee a job at his old wage within his ability to perform . . . only if the proffered job is . . . available generally in the market. If the proffered job is generally available in the market, the wages earned in it may well be strong, if not conclusive, evidence of the employee\u2019s earning capacity.\nId. at 440, 342 S.E.2d at 807 (emphasis added). The Peoples holding recognizes that wages earned in \u201cmade work\u201d are inherently unreliable indicators of an employee\u2019s actual earning capacity because the \u201cwages may reflect not the employee\u2019s earning capacity in a competitive situation but rather a company policy which, if abrogated for any reason . . . , will force the employee into a position where he will be unable, because of his injuries, to continue to earn such wages . . . .\u201d Id. at 437, 342 S.E.2d at 805 (quoting Allen v. Industrial Commission, 347 P.2d 710, 718 (1959)) (emphasis deleted).\nIn Peoples, plaintiff sought permanent and total disability benefits because he allegedly contracted a debilitating lung disease while working for defendant. Id. at 427-428, 342 S.E.2d at 800. After learning of plaintiff\u2019s illness, defendant transferred plaintiff to the supply room to minimize his exposure to dust. Id. at 428, 342 S.E.2d at 800. After four days in the supply room, plaintiff was hospitalized for \u201cchest pain and breathing difficulty.\u201d Id. Plaintiff did not return to work after being discharged from the hospital. Id. at 428, 342 S.E.2d at 801.\nIn an effort to employ plaintiff despite his medical limitations, defendant modified an existing position and offered it to plaintiff. Id. Defendant\u2019s personnel manager testified the job offered to plaintiff \u201chas never before existed at [defendant\u2019s plant]. It was created especially for plaintiff with his physical limitations in mind.\u201d Id. at 429-430, 342 S.E.2d at 801. Dr. Thomas K. White, an expert in vocational rehabilitation and job skills, also testified he was \u201cnot aware of any job on the market today similar to [the job offered plaintiff] with the same pay scale. . . . [T]his is not really a standard job which is in existence in the labor market but that this is going to be a tailored, engineered type of job.\u201d Id. at 431-432, 342 S.E.2d at 802.\nBased on the above detailed testimony, the Supreme Court found that defendant was the only employer who would offer plaintiff such a job opportunity. Id. at 439, 342 S.E.2d at 806. The Court therefore held \u201cthe job [defendant] offers plaintiff cannot be considered as evidence of plaintiffs ability to earn wages.\u201d Id. at 439, 342 S.E.2d at 807.\nIn the instant action, Arrington currently holds a custodial position at Texfi. The hourly wage he receives as a custodian is higher than what he earned in his pre-injury position as a chemical mixer. Defendants contend this establishes Arrington\u2019s wage earning capacity is the same as, if not better than, before his injury.\nThe Commission found, however, \u201calthough [Texfi] may well be attempting to accommodate [Arrington\u2019s] chronic weakness and fatigue, the lighter work that [Arrington] does on the premises is nonproductive work that is not necessary to [Texfi\u2019s] smooth operation.\u201d This finding essentially characterizes Arrington\u2019s custodial position at Texfi as the kind of \u201cmade work\u201d which \u201ccannot be considered as evidence of plaintiff\u2019s ability to earn wages.\u201d Id. at 439, 342 S.E.2d at 807. Therefore, as the \u201cCommission\u2019s findings of fact are binding on appeal when supported by competent evidence,\u201d Lackey v. R. L. Stowe Mills, 106 N.C. App. 658, 661, 418 S.E.2d 517, 519, disc. review denied, 332 N.C. 345, 421 S.E.2d 150 (1992), it follows we must determine whether the present record supports the Commission\u2019s finding that Arrington\u2019s custodial position is \u201cmade work.\u201d\nArrington\u2019s custodial duties include sweeping, cleaning, emptying wastebaskets, monitoring machines, driving a forklift, operating a beam truck, using a chain hoist to unload beams, and cutting waste yarn from beams. To support his claim this is \u201cmade work,\u201d Arrington directs this Court to Dr. Peterson\u2019s deposition testimony. Although, at first blush, Dr. Peterson\u2019s statement that the custodial position is \u201cmake-do work\u201d appears dispositive, a closer reading of the record discloses two fatal flaws.\nFirst, Dr. Peterson\u2019s characterization of the custodial position as \u201cmake-do work\u201d was not based upon the availability of the custodial position on the open market, but rather was apparently premised upon Arrington\u2019s subjective feelings of embarrassment and inadequacy when his physical incapacity forced him to refrain from heavy labor. The Act, however, provides compensation only for objective and quantifiable loss in one\u2019s ability to earn wages. Peoples, 316 N.C. at 434-435, 342 S.E.2d at 804.\nSecond, unlike the plaintiff\u2019s expert in Peoples, we note Dr. Peterson is a plastic surgeon with special expertise in burn treatment \u2014 not an industrial engineer; a vocational rehabilitation and job skills expert; or an individual with expertise in, or knowledge of, the yam industry as a whole, or Texfi in particular. As Dr. Peterson has no special knowledge, training, education, or skill regarding employment within Texfi or the yarn industry, his characterization of the custodial position as \u201cmake-do work\u201d is immaterial to either the legal or factual determination of whether the custodial position is \u201cmade work.\u201d See id. at 438, 342 S.E.2d at 806 (emphasizing testimony about \u201cmake work\u201d nature of plaintiff\u2019s job provided by defendant\u2019s personnel manager and a vocational rehabilitation and job skills expert). See also N.C. Gen. Stat. \u00a7 8C-1, Rule 702 (1992). Therefore, under Peoples, Arrington failed to establish, through competent testimony, that his custodial position is \u201cmade work.\u201d\nBecause Arrington proffered no competent evidence the custodial position is \u201cmade work,\u201d it represents \u201cstrong, if not conclusive, evidence of the employee\u2019s earning capacity.\u201d Peoples, 316 N.C. at 440, 342 S.E.2d at 807. We note, however, the Commission failed to make any findings or draw any conclusions on whether or not Arrington is physically and mentally capable of performing his custodial duties. See Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (entitled to benefits if physically or mentally incapable of working). \u201cThis Court is therefore unable to determine whether adequate basis exists, either in fact or law, for the Commission\u2019s award.\u201d Hilliard, 305 N.C. at 596-597, 290 S.E.2d at 684.\nAccordingly, we reverse and remand for further proceedings consistent with this opinion.\nReversed and remanded.\nJudges JOHNSON and LEWIS concur.", "type": "majority", "author": "MARTIN, Mark D., Judge." } ], "attorneys": [ "Anderson & Anderson, by Michael J. Anderson, for plaintiff-appellee.", "Hedrick, Eatman, Gardner & Kincheloe, by Thomas W. Page and Jennifer Ingram Mitchell, for defendant-appellants." ], "corrections": "", "head_matter": "ADAM ARRINGTON, Employee-Plaintiff v. TEXFI INDUSTRIES, Employer-Defendant, and AMERICAN POLICYHOLDERS INSURANCE COMPANY, Carrier-Defendant\nNo. COA95-1124\n(Filed 6 August 1996)\nWorkers\u2019 Compensation \u00a7 230 (NCI4th)\u2014 employee earning higher wages post-injury \u2014 duties not \u201cmade work\u201d \u2014 plaintiffs ability to perform duties \u2014 insufficiency of findings \u2014 inadequate basis for award of permanent disability benefits\nThe Industrial Commission erred in awarding permanent and total disability benefits to plaintiff where the evidence before the Commission was that plaintiff held a custodial position at defendant\u2019s plant; the hourly wage he received as a custodian was higher than what he earned in his pre-injury position as a chemical mixer; plaintiff failed to establish, through competent testimony, that his custodial position was \u201cmade work\u201d; because plaintiff offered no competent evidence that the custodial position was \u201cmade work,\u201d it represented strong if not conclusive evidence of his earning capacity; but because the Commission failed to make any findings or draw any conclusions on whether plaintiff was physically and mentally capable of performing his custodial duties, the court on appeal was unable to determine whether an adequate basis existed for the Commission\u2019s award of permanent and total disability benefits to plaintiff.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 395-399.\nAdmissibility of opinion evidence as to employability on issue of disability in health and accident insurance and workers\u2019 compensation cases. 89 ALR3d 783.\nAppeal by defendants from opinion and award filed 13 July 1995 by the North Carolina Industrial Commission. Heard in the Court of Appeals 23 May 1996.\nAnderson & Anderson, by Michael J. Anderson, for plaintiff-appellee.\nHedrick, Eatman, Gardner & Kincheloe, by Thomas W. Page and Jennifer Ingram Mitchell, for defendant-appellants." }, "file_name": "0476-01", "first_page_order": 510, "last_page_order": 515 }