{
  "id": 11889181,
  "name": "HATTIE SAUMS, Employee, Plaintiff-Appellee v. RALEIGH COMMUNITY HOSPITAL, EMPLOYER, CONTINENTAL INSURANCE COMPANY (Continental Loss Adjusting, Adjusting Agent), Carrier; Defendant-Appellants",
  "name_abbreviation": "Saums v. Raleigh Community Hospital",
  "decision_date": "1996-10-15",
  "docket_number": "No. COA95-1303",
  "first_page": "219",
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          "parenthetical": "because employee offered no competent evidence that new position was \"made work,\" earnings received from that job were \"strong, if not conclusive, evidence of the employee's earning capacity\""
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          "parenthetical": "employee \"may attempt to explain 'away the post-injury earnings as an unreliable basis for estimating capacity' \""
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    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges JOHN and MARTIN, Mark D., concur."
    ],
    "parties": [
      "HATTIE SAUMS, Employee, Plaintiff-Appellee v. RALEIGH COMMUNITY HOSPITAL, EMPLOYER, CONTINENTAL INSURANCE COMPANY (Continental Loss Adjusting, Adjusting Agent), Carrier; Defendant-Appellants"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nRaleigh Community Hospital (employer) and Continental Insurance Company (Continental Insurance) (collectively defendants) appeal the award by the North Carolina Industrial Commission (the Commission) of ongoing total disability to Hattie Saums (Saums).\nOn 22 September 1989, Saums, a fifty-three-year-old female with a ninth-grade education, sustained an injury to her back arising out of her employment as a housekeeper with the employer. In November 1989, she underwent a lumbar laminectomy and a discectomy. She remained at home recovering from the operation until January 1990 when she had a subsequent re-exploratory surgery after reporting pain in her leg.\nIn March 1990, Saums was released by her orthopedic surgeon, Dr. David Fajgenbaum (Dr. Fajgenbaum), to return to work. She was restricted to not lifting more than thirty pounds and not climbing or crawling for any prolonged period. On 2 April 1990, Saums returned to her former position as a housekeeper. Two days later she reported to Dr. Fajgenbaum that she had begun experiencing back and hip pain. She did not return to work until 21 January 1991 after she had recovered from another surgery on her back. At this time she was offered the position of a quality control clerk (Clerk), \u201ca new position created for [Saums\u2019] return\u201d to the employer. Duties assigned to that position included \u201coffice filing, answering the telephone, counting linen occasionally\u201d and other general office duties. The job description for the position listed the \u201cqualifications\u201d of the position as a \u201chigh school education or equivalent.\u201d It further stated that the applicant \u201c[m]ust be able to read and write and communicate in English.\u201d\nFrom January 1991 until February 1992, Saums worked as a Clerk with only infrequent absences due to discomfort from her injury, however, she complained of increasing back pain. On 26 February 1992, Dr. Fajgenbaum performed another myelogram and the test did not reveal \u201cany good reason\u201d for Saums\u2019 continued complaints of severe pain. In a letter to the employer dated 5 May 1992, Dr. Fajgenbaum indicated that he could not \u201cfind any hard reason as to why this patient should not be allowed to return to the job that was created by you which would eliminate any strenuous activities.\u201d Saums, on February 1992, refused to return to her job as a Clerk.\nIn addition to findings reflecting the above undisputed facts, the Commission found as a fact that \u201c[t]here is insufficient evidence . . . from which to determine . . . that the newly created job position . . . was ordinarily available in the competitive job market.\u201d Based on this finding, the Commission concluded that Saums was entitled to \u201ctemporary total disability compensation.\u201d\nThe issue is whether the Commission correctly placed the burden on the employer to show that the post-injury job offered to its employee is one available generally in the market.\nAn employee is entitled to compensation under the Workers\u2019 Compensation Act (Act) if there is an \u201cincapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u201d N.C.G.S. \u00a7 97-2(9) (1991). Thus, an employee\u2019s \u201cpost-injury earning capacity is the determinative factor in assessing disability.\u201d Tyndall v. Walter Kidde Co., 102 N.C. App. 726, 730, 403 S.E.2d 548, 550, disc. rev. denied, 329 N.C. 505, 407 S.E.2d 553 (1991). An employee\u2019s post-injury earnings create a rebuttable presumption of earning capacity commensurate with the post-injury earnings. Id. An employee may rebut this presumption by showing that the earnings are derived from a job, created by her employer, which is not \u201cavailable generally in the market.\u201d Peoples v. Cone Mills Corp., 316 N.C. 426, 440, 342 S.E.2d 798, 807 (1986); Tyndall, 102 N.C. App. at 730, 403 S.E.2d at 550 (employee \u201cmay attempt to explain \u2018away the post-injury earnings as an unreliable basis for estimating capacity\u2019 \u201d); Arrington v. Texfi Industries, 123 N.C. App. 476, 481, 473 S.E.2d 403, 407 (1996) (because employee offered no competent evidence that new position was \u201cmade work,\u201d earnings received from that job were \u201cstrong, if not conclusive, evidence of the employee\u2019s earning capacity\u201d).\nIn this case, the Commission failed to give the employer the benefit of the presumption that the newly created job of Clerk was ordinarily available in the competitive job market. Instead, the Commission placed the burden on the employer to show that the newly created job was ordinarily available in the competitive job market. This was error. The employer is entitled to the benefit of the presumption that the newly created job is of a type generally available in the market and the burden rests with Saums to rebut this presumption. Because the Commission misapplied these principles remand is necessary for the entry of a new Opinion and Award. See N.C.G.S. \u00a7 150B-51(b) (1995).\nReversed and remanded.\nJudges JOHN and MARTIN, Mark D., concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "The Law Offices of John T. Orcutt, by John T. Orcutt, and The Law Offices of Nancy P. White, by Nancy P. White, for the plaintiff-appellee.",
      "Teague, Campbell, Dennis & Gorham, L.L.P., by Thomas M. Clare and Mallory A. Taylor, for defendant-appellants."
    ],
    "corrections": "",
    "head_matter": "HATTIE SAUMS, Employee, Plaintiff-Appellee v. RALEIGH COMMUNITY HOSPITAL, EMPLOYER, CONTINENTAL INSURANCE COMPANY (Continental Loss Adjusting, Adjusting Agent), Carrier; Defendant-Appellants\nNo. COA95-1303\n(Filed 15 October 1996)\nWorkers\u2019 Compensation \u00a7 234 (NCI4th)\u2014 return to work after injury \u2014 newly created job \u2014 presumption that job ordinarily available in competitive market\nThe Industrial Commission erred in a workers\u2019 compensation action when finding petitioner entitled to temporary total disability compensation for a back injury by failing to give the employer the benefit of the presumption that a newly created job was ordinarily available in the competitive job market.\nAm Jur 2d, Workers\u2019 Compensation \u00a7\u00a7 395, 397.\nAppeal by defendants from Opinion and Award for the Full Commission filed 22 August 1995. Heard in the Court of Appeals 28 August 1996.\nThe Law Offices of John T. Orcutt, by John T. Orcutt, and The Law Offices of Nancy P. White, by Nancy P. White, for the plaintiff-appellee.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Thomas M. Clare and Mallory A. Taylor, for defendant-appellants."
  },
  "file_name": "0219-01",
  "first_page_order": 257,
  "last_page_order": 259
}
