{ "id": 11466981, "name": "RANDALL J. WILLIAMS, Employee, Plaintiff v. PEE DEE ELECTRIC MEMBERSHIP CORPORATION, Employer, and CRAWFORD & COMPANY, Carrier, Defendants", "name_abbreviation": "Williams v. Pee Dee Electric Membership Corp.", "decision_date": "1998-07-21", "docket_number": "No. COA97-351", "first_page": "298", "last_page": "303", "citations": [ { "type": "official", "cite": "130 N.C. App. 298" } ], "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": "477 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "203" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 320", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889375 ], "year": 1996, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0320-01" ] }, { "cite": "173 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "902" } ], "opinion_index": 0 }, { "cite": "276 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562301 ], "year": 1970, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0499-01" ] }, { "cite": "277 S.E.2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "448" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2645720 ], "year": 1981, "pin_cites": [ { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0646-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1997, "pin_cites": [ { "page": "(9)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1991, "pin_cites": [ { "page": "233-34" } ], "opinion_index": 0 }, { "cite": "472 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1996, "pin_cites": [ { "page": "401" }, { "page": "401" }, { "page": "401" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912671 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0228-01" ] } ], "analysis": { "cardinality": 505, "char_count": 11717, "ocr_confidence": 0.782, "pagerank": { "raw": 1.5604649343171285e-07, "percentile": 0.6768284560219534 }, "sha256": "ed303a2cea03949176dcfa5e3590ce7b022a6e68174db9c5659647f44f74da4b", "simhash": "1:89b46588324b4c0d", "word_count": 1822 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and TIMMONS-GOODSON concur." ], "parties": [ "RANDALL J. WILLIAMS, Employee, Plaintiff v. PEE DEE ELECTRIC MEMBERSHIP CORPORATION, Employer, and CRAWFORD & COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nOn 23 August 1993, plaintiff sustained an injury by accident while working as a lineman for defendant Pee Dee Electrical Membership Corporation (\u201cPee Dee\u201d). The injury arose out of and in the course of his employment with Pee Dee. Between 23 August and 15 November 1993, plaintiff was unable to work in any capacity but continued to receive his regular wages pursuant to company policy.\nOn 15 November 1993, plaintiff resumed working for Pee Dee in a light-duty position that conformed with his work restrictions. On 12 January 1994, plaintiff was convicted of indecent exposure in district court. Two days later he was fired because of his conviction. He was never rehired and defendants refused to pay any further workers\u2019 compensation. Plaintiff appealed his conviction to the superior court and his case was dismissed by the district attorney on 21 March 1994.\nOn 27 July 1994, plaintiff filed a Form 33, \u201cRequest That Claim Be Assigned for Hearing,\u201d with the North Carolina Industrial Commission. On 13 October 1994, defendants filed a Form 33R, \u201cResponse to Request That Claim Be Assigned for Hearing.\u201d See N.C.I.C. Workers\u2019 Comp. Rule 603. In the Form 33R, defendants made the following statement:\nIn response to the request for hearing filed we have been unable to agree to the benefits claimed because plaintiff is not entitled to anv further temporary total disability as his inability to work is unrelated to his injury bv accident and was caused bv an arrest for indecent exposure.\nThe beginning of this statement was preprinted on the Form 33R; the underlined information was provided by defendants.\nA deputy commissioner heard the case on 2 March 1995 and filed his opinion and award on 23 January 1996. He concluded that although plaintiff was entitled to compensation for permanent partial disability, plaintiff was not entitled to any temporary total disability benefits after 14 January 1994. The deputy commissioner reasoned that plaintiff had \u201cconstructively refused to accept suitable employment\u201d by engaging in the conduct that led to his conviction and ultimately to his discharge from work.\nOn appeal, the Full Commission reversed the deputy commissioner and awarded plaintiff temporary total disability benefits from 14 January 1994 and continuing. The issue of permanent partial disability was held open for determination at a later date. The Full Commission believed that plaintiff had not constructively refused employment. Defendants appeal.\nWe note that plaintiff died on 2 July 1997. On 30 March 1998, the administrators for plaintiff\u2019s estate, Colon R. Williams, Jr. and Betty Williams, were substituted for the deceased plaintiff as parties to this appeal. See N.C.R. App. R 38.\nDefendants base their constructive refusal defense on General Statute section 97-32 and on this Court\u2019s opinion in Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996). Section 97-32 provides,\nIf an injured employee refuses employment procured for him suitable to his capacity he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified.\nN.C. Gen. Stat. \u00a7 97-32 (1991). The Seagraves Court held that just as an employee who actually refuses suitable employment is barred from receiving benefits by G.S. 97-32, so too is an employee who constructively refuses employment. Id. at 233-34, 472 S.E.2d at 401. Defendants argue that plaintiff constructively refused employment by engaging in the misconduct that led to his criminal conviction and ultimately to his dismissal from work.\nTo establish that an employee has constructively refused employment, the employer must show that\nthe employee was terminated for misconduct or fault, unrelated to the compensable injury, for which a nondisabled employee would ordinarily have been terminated. If the employer makes such a showing, the employee\u2019s misconduct will be deemed to constitute a constructive refusal to perform the work provided and consequent forfeiture of benefits or lost earnings, unless the employee is then able to show that his or her inability to find or hold other employment of any kind, or other employment at a wage comparable to that earned prior to the injury, is due to the work-related disability.\nId. at 234, 472 S.E.2d at 401.\nAn employer who argues that a plaintiff has constructively refused employment is arguing that the employee no longer suffers from a disability. Our Workers\u2019 Compensation Act defines disability as \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. Gen. Stat. \u00a7 97-2(9) (Cum. Supp. 1997) (emphasis added). The constructive refusal defense is an argument that the employee\u2019s inability to earn wages at pre-injury levels is no longer caused by his injury; rather, the employer argues, the employee\u2019s misconduct is responsible for his inability to earn wages at pre-injury levels. Because it is the employer who seeks to discontinue disability payments on this basis, the employer has the initial burden of showing that the employee actually engaged in the misconduct.\nBefore reaching the merits of this case, we must address a procedural argument raised by plaintiff. Plaintiff contends that the defense of constructive refusal is an affirmative defense which defendants failed to raise in their Form 33R with adequate specificity. An affirmative defense is a defense that introduces a new matter in an attempt to avoid a claim, regardless of whether the allegations of the claim are true. Roberts v. Heffner, 51 N.C. App. 646, 649, 277 S.E.2d 446, 448 (1981). The constructive refusal defense is not an affirmative defense because it does not raise a new matter in an effort to avoid liability. Rather, it denies that the employee suffers from a disability. The issue of whether a disability exists is, of course, raised when the employee files a claim for benefits.\nThe parties to this case do not dispute that plaintiff was convicted of indecent exposure on 12 January 1994. In addition, neither party has assigned error to the Full Commission\u2019s finding (No. 8) that the reason plaintiff was fired on 14 January 1994 was because he was convicted of indecent exposure. It is also undisputed that plaintiff appealed his conviction at some time prior to the disposition of this case. Once plaintiff appealed his district court conviction to superior court, the conviction was annulled for purposes of the superior court trial de novo. State v. Sparrow, 276 N.C. 499, 507, 173 S.E.2d 897, 902 (1970). (Of course, had plaintiff withdrawn his appeal, the district court conviction and sentence would again be valid. See N.C. Gen. Stat. \u00a7 15A-1431(g) (1997).) Finally, it is undisputed that after plaintiff appealed his conviction, the district attorney dismissed the charges against him.\nPlaintiffs district court conviction for indecent exposure is, at best, evidence that plaintiff indecently exposed himself. A conviction is not itself misconduct; it is, at best, evidence of misconduct. On remand, the Commission must reconsider all of the competent evidence and make a specific finding as to whether plaintiff engaged in misconduct for which a nondisabled employee would ordinarily have been discharged.\nIt is apparent from the opinion and award of the Commission that some other misconceptions need to be corrected. First, there is no requirement that the employee\u2019s misconduct occur during working hours or at the workplace. Second, there is no requirement that the misconduct constitute a crime. The misconduct need only be such that a nondisabled employee would ordinarily have been discharged for it. Third, a finding that the employee was discharged for misconduct \u201cpursuant to company policy\u201d is not sufficient to support a conclusion that the employee has constructively refused employment. The Commission must specifically find that the employee was discharged for misconduct for which a nondisabled employee would ordinarily have been terminated.\nOn remand, if the Commission finds that defendants have fulfilled their burden, the burden shifts to plaintiff to re-establish that he suffers from a disability. Plaintiff may discharge this burden by showing that he cannot, because of injury, find and hold a suitable job with another employer that enables him to earn wages at pre-injury levels. Seagraves, 123 N.C. App. at 234, 472 S.E.2d at 401; Brown v. S & N Communications, Inc., 124 N.C. App. 320, 331, 477 S.E.2d 197, 203 (1996).\nIn sum, the opinion and award of the Industrial Commission contains insufficient findings of fact and inaccurate conclusions of law. It is therefore reversed. This case is remanded for reconsideration in light of this opinion. The Commission may, of course, take such further evidence as may be necessary to make the findings and conclusions required by law.\nPlaintiff\u2019s motion for attorney fees is denied.\nReversed and remanded.\nJudges WALKER and TIMMONS-GOODSON concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Perry, Bundy, Plyler & Long, L.L.P., by H. Lig\u00f3n Bundy, for plaintiff-appellee.", "Golding, Meekins, Holden, Cosper & Stiles, L.L.P., by Lawrence M. Baker, for defendants-appellants." ], "corrections": "", "head_matter": "RANDALL J. WILLIAMS, Employee, Plaintiff v. PEE DEE ELECTRIC MEMBERSHIP CORPORATION, Employer, and CRAWFORD & COMPANY, Carrier, Defendants\nNo. COA97-351\n(Filed 21 July 1998)\n1. Workers\u2019 Compensation\u2014 constructive refusal \u2014 not an affirmative defense\nAlthough plaintiff in a workers\u2019 compensation action contended that constructive refusal of employment is an affirmative defense which defendants failed to raise adequately, the constructive refusal defense is not an affirmative defense because it does not raise a new matter. It denies that the employee suffers from a disability, an issue which is raised when the employee files a claim.\n2. Workers\u2019 Compensation\u2014 temporary total disability\u2014 indecent exposure conviction \u2014 findings\nThe Industrial Commission opinion and award in a workers\u2019 compensation action contained insufficient findings of fact and inaccurate conclusions of law where plaintiff was injured in the course of his employment, convicted in district court of indecent exposure and appealed to superior court, the district attorney dismissed the case, plaintiff was fired because of the conviction, defendants denied any further temporary total disability, and the Industrial Commission awarded plaintiff temporary total disability benefits. A conviction is not itself misconduct; it is at best evidence of misconduct and the Industrial Commission, on remand, must consider all of the competent evidence and make a specific finding as to whether plaintiff engaged in misconduct for which a nondisabled employee would ordinarily have been discharged.\n3. Workers\u2019 Compensation\u2014 temporary disability \u2014 employee\u2019s misconduct\nThere is no requirement that an employee\u2019s misconduct on which constructive refusal is based occur during working hours or at the workplace and no requirement that the misconduct constitute a crime; the misconduct need only be such that a nondis-abled employee would ordinarily have been discharged for it. The Industrial Commission must specifically find that the employee was discharged for conduct for which a nondisabled employee would ordinarily have been terminated; a finding that the employee was discharged for misconduct pursuant to company policy is not sufficient to support a conclusion that the employee has constructively refused employment.\nAppeal by defendants from opinion and award entered 10 December 1996 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 November 1997.\nPerry, Bundy, Plyler & Long, L.L.P., by H. Lig\u00f3n Bundy, for plaintiff-appellee.\nGolding, Meekins, Holden, Cosper & Stiles, L.L.P., by Lawrence M. Baker, for defendants-appellants." }, "file_name": "0298-01", "first_page_order": 330, "last_page_order": 335 }