{ "id": 8960206, "name": "JUDI BAKER, Employee, Plaintiff v. SAM'S CLUB, Employer; and CLAIMS MANAGEMENT, INC., Carrier; Defendants", "name_abbreviation": "Baker v. Sam's Club", "decision_date": "2003-12-16", "docket_number": "No. COA03-117", "first_page": "712", "last_page": "717", "citations": [ { "type": "official", "cite": "161 N.C. App. 712" } ], "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": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "552", "parenthetical": "quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)" }, { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "year": 2000, "pin_cites": [ { "page": "115", "parenthetical": "quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "483 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53949, 54219, 53871, 53978, 54045 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0343-02", "/nc/345/0343-03", "/nc/345/0343-01", "/nc/345/0343-05", "/nc/345/0343-04" ] }, { "cite": "476 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "124 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888498 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/124/0072-01" ] }, { "cite": "342 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "805" }, { "page": "806" } ], "opinion_index": 0 }, { "cite": "316 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704100 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "437" }, { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0426-01" ] }, { "cite": "577 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "year": 2003, "opinion_index": 0 }, { "cite": "562 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "149 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125102 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/149/0001-01" ] }, { "cite": "487 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "750" }, { "page": "750" } ], "opinion_index": 0 }, { "cite": "346 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139324 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "765" }, { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0760-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-30", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "pin_cites": [ { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "opinion_index": 0 } ], "analysis": { "cardinality": 638, "char_count": 12244, "ocr_confidence": 0.76, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.21282186722083024 }, "sha256": "e720d5b5e57c845c95a67c1378fc3507e82a051d2a103be47cce772ac0bf1c01", "simhash": "1:09f1cc079eacba40", "word_count": 1886 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and CALABRIA concur." ], "parties": [ "JUDI BAKER, Employee, Plaintiff v. SAM\u2019S CLUB, Employer; and CLAIMS MANAGEMENT, INC., Carrier; Defendants" ], "opinions": [ { "text": "HUDSON, Judge.\nPlaintiff Judi Baker (\u201cplaintiff\u2019) suffered knee, arm, shoulder and neck injuries when she slipped and fell while at work. Plaintiffs employer, Sam\u2019s Club (\u201cdefendant\u201d), paid disability compensation and medical treatment costs related to the knee injury, but denied compensability for the arm, shoulder and neck problems. Plaintiff sought a hearing. Deputy Commissioner Wanda Blanche Taylor heard plaintiff\u2019s case in Wilmington on 31 March 1998, and entered her opinion and award 1 July 1999, awarding compensation only for permanent partial disability related to her knee injury. Plaintiff appealed the Deputy Commissioner\u2019s decision to the Full Commission, which reviewed her case 29 February 2000. On 20 September 2002, the Full Commission filed an opinion and award, again awarding plaintiff compensation only for the permanent partial disability rating related to her knee injury, pursuant to N.C. Gen. Stat. \u00a7 97-31 (1995). Plaintiff appeals, alleging error in the Commission\u2019s failure to make findings about the suitability of plaintiff\u2019s job following her injury. For the reasons discussed below, we reverse in part and remand to the Full Commission for findings about the suitability of plaintiff\u2019s post-injury position, and for appropriate conclusions based on those findings.\nThe findings of the Commission indicate that plaintiff was employed by defendant as an outside marketing representative earning an average weekly wage of $428.00. On 24 May 1996, in the course and scope of her employment, plaintiff slipped and fell while calling on Food Lion, a customer of defendant. Embarrassed by her fall, plaintiff attempted to complete the call, and then reported the accident to her supervisor immediately on returning from the field. Defendants accepted plaintiff\u2019s claim as a compensable injury by accident to her knee.\nPlaintiff saw doctors at Cape Fear Occupational Health Services with anterior knee pain and reports of neck, arm and shoulder pain. Plaintiff eventually underwent knee surgeries on 11 November 1996 and 25 April 1997, and remained out of work until 7 September 1997. Plaintiff\u2019s physician released her to return to work with restrictions and recommended a primarily sedentary job without kneeling, stooping, squatting or bending, limited stair climbing and a lifting limit of twenty pounds.\nPlaintiff returned to work with defendant 7 September 1997, taking a sit-down position at the Credit Applications desk. Plaintiff was able to perform this job, but the position was eliminated nationwide after 25 December 1997. Defendant then transferred plaintiff to a demonstrator job, preparing food products for customers to taste while in the store. The position required plaintiff to load the necessary food and equipment onto a cart, push the cart to the demonstration location, prepare the food, serve it to customers, clean up and break down the demonstration station afterwards, and take out the accumulated trash.\nIn January 1998, while working as a demonstrator, plaintiff\u2019s knee collapsed as she stooped to place food into a microwave. Defendant then moved plaintiff to a non-cooking position, albeit one which still required standing, reaching and lifting. The Commission made the following finding:\n11. The plaintiff testified that her job as a non-cooking demonstrator exceeded her physical limitations and light duty restriction. However, the plaintiff was offered help by the preparation people to assist her in tearing down and setting up for her demonstrations. There are generally two prep people available. The plaintiff declined this help indicating that she did not want to be a strain on the team and that if a 60-year-old prep person could do it, she could do it.\nTestimony also showed that plaintiff felt embarrassed about her physical limitations and about being paid $11.40 per hour, when other demonstrators earned only $8.00 to $9.00 per hour. Plaintiff discussed her new position with her physician, who re-emphasized that she needed a sedentary job. Defendant\u2019s sales manager agreed that the job description presented for approval by plaintiff\u2019s physician was not accurate because it did not indicate that the job required lifting, squatting, kneeling and prolonged standing.\nFollowing continued complaints of pain in her knee, arm, shoulder and neck, plaintiff\u2019s physician advised her that she would either need to quit work or work in pain. Plaintiff continued to be seen by physicians for the injuries to her knee, receiving a permanent partial impairment rating of seven percent to her left leg. Plaintiff also continued treatment for injuries to her right arm and shoulder, eventually being diagnosed with carpal tunnel and impingement syndromes. As a result of those injuries, plaintiff\u2019s physician removed her from work until they could be resolved surgically. Plaintiff remains out of work, contending that the demonstrator job assigned to her by defendants was not suitable given her restrictions.\nPlaintiff first contends that the Industrial Commission erred in failing to make findings of fact on the issue of suitability of the jobs to which she returned on 7 September 1997 following her injury. Because the Commission\u2019s opinion and award fails to make any findings about the suitability of plaintiffs post-injury jobs, as required for its determination, we remand for findings on that issue.\nPrior to the hearing before the deputy commissioner, the parties stipulated that one of the issues before the Commission was whether plaintiff is \u201centitled to payment of temporary partial disability from September 9,1997 to the present and continuing.\u201d Under the Workers\u2019 Compensation Act, disability is defined by a diminished capacity to earn wages, not by physical infirmity alone. N.C. Gen. Stat. \u00a7 97-2(9) (1995). Findings about the plaintiff\u2019s ability to earn wages in the competitive job market are necessary for the Commission to determine her earning capacity which, in turn, is necessary for a determination of entitlement to temporary partial disability under N.C. Gen. Stat. \u00a7 97-30. Saums v. Raleigh Community Hosp., 346 N.C. 760, 765, 487 S.E.2d 746, 750 (1997). In order to determine whether the benefits for the seven percent rating are the more munificent remedy, the Commission must address the plaintiff\u2019s loss of wage-earning capacity, if any. See Knight v. Wal-Mart, 149 N.C. App. 1, 562 S.E.2d 434 (2002), affirmed per curiam, 357 N.C. 54, 577 S.E.2d 620 (2003).\n\u201c[A]n injured employee\u2019s earning capacity must be measured not by the largesse of a particular employer, but rather by the employee\u2019s own ability to compete in the labor market.\u201d Peoples v. Cone Mills Corp., 316 N.C. 426, 437, 342 S.E.2d 798, 805 (1986). Thus, \u201cthe fact that an employee is capable of performing employment tendered by the employer is not, as a matter of law, an indication of plaintiff\u2019s ability to earn wages.\u201d Saums, 346 N.C. at 764, 487 S.E.2d at 750. As our Supreme Court has explained:\nProffered employment would not accurately reflect earning capacity if other employers would not hire the employee with the employee\u2019s limitations at a comparable wage level. The same is true if the proffered employment is so modified because of the employee\u2019s limitations that it is not ordinarily available in the competitive job market. The rationale behind the competitive measure of earning capacity is apparent. If an employee has no ability to earn wages competitively, the employee will be left with no income should the employee\u2019s job be terminated.\nPeoples, 316 N.C. at 438, 342 S.E.2d at 806; see also Kisiah v. Kisiah Plumbing, Inc., 124 N.C. App. 72, 476 S.E.2d 434 (1996), dsic. review denied 345 N.C. 343, 483 S.E.2d 169 (1997). Thus, in order to make the necessary findings about plaintiffs earning capacity, the Commission must first make findings about whether the job offered by defendant to plaintiff accurately reflects her ability to earn wages in the competitive marketplace.\nDuring the hearing, plaintiff presented medical records, and testimony from herself and from Michael Travelstead (\u201cTravelstead\u201d), a sales manager working for defendant, tending to show that jobs plaintiff held following her injury were not suitable given her medical restrictions. The defendants prepared job descriptions for the positions of credit membership table telemarketer and demonstrator, each of which plaintiffs physician approved for her. Plaintiff first undertook the job at the credit membership table, which she believed she was able to perform. However, when defendant eliminated that position 25 December 1997, plaintiff began work as a demonstrator. Travelstead testified that the job description he had prepared for plaintiffs physician did not accurately present the true physical requirements of the demonstrator position. In addition, plaintiff presented evidence that she was paid $11.40 per hour for her work, while other demonstrators earned only $8.00 to $9.00 per hour, and that defendant offered her assistance to permit her to perform this work.\nThe Commission failed to make any findings about the suitability of plaintiffs post-injury employment by defendant. Because these findings were necessary in order for the Commission to determine whether plaintiff was entitled to temporary partial disability compensation, and whether those benefits or the benefits for the rating were more generous, we remand to the Commission to address these factual issues, and then draw appropriate conclusions.\nPlaintiff next argues that the Industrial Commission erred in making findings and reaching conclusions that go against the greater weight of the evidence on the issue of whether plaintiffs arm, shoulder and neck injuries are compensable. Because the Commission is the sole judge of credibility of the witnesses and the weight to be given their testimony, we overrule this assignment of error.\nWe do \u201cnot have the right to weigh the evidence and decide the issue on the basis of its weight.\u201d Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 115, 530 S.E.2d 549, 552 (2000) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). Our \u201cduty goes no further than to determine whether the record contains any evidence tending to support the finding.\u201d Id. \u201c[A]ppellate courts reviewing Commission decisions are limited to reviewing whether any competent evidence supports the Commission\u2019s findings of fact and whether the findings of fact support the Commission\u2019s conclusions of law.\u201d Id. at 116, 530 S.E.2d at 553.\nThe evidence before the Commission included the report of Dr. James A. Nunley, a physician who evaluated plaintiff at the Commission\u2019s request. Dr. Nunley\u2019s report stated that plaintiff\u2019s \u201cneck injury is not related to her workmen\u2019s compensation fall nor is her shoulder injury.\u201d Because this evidence before the Commission supports its findings, they are conclusive on appeal, and these findings in turn support the Commission\u2019s conclusions regarding the causation of plaintiff\u2019s arm, shoulder and neck injuries.\nRemanded for additional findings and conclusions.\nJudges McGEE and CALABRIA concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Brumbaugh, Mu & King, P.A., by Leah L. King, for plaintiff-appellant.", "Young, Moore & Henderson, P.A., by J.D. Prather and Michael W. Ballance, for defendant-appellees." ], "corrections": "", "head_matter": "JUDI BAKER, Employee, Plaintiff v. SAM\u2019S CLUB, Employer; and CLAIMS MANAGEMENT, INC., Carrier; Defendants\nNo. COA03-117\n(Filed 16 December 2003)\n1. Workers\u2019 Compensation\u2014 post-injury employment \u2014 necessary findings\nA workers\u2019 compensation award was remanded for necessary findings about the suitability of plaintiff\u2019s post-injury employment by defendant.\n2. Workers\u2019 Compensation\u2014 credibility and weight of evidence \u2014 Commission as sole judge\nAn assignment of error to Industrial Commission findings and conclusions was overruled where plaintiff contended that those findings and conclusions were contrary to the greater weight of the evidence. There was evidence to support the findings, and the Industrial Commission is the sole judge of the credibility and weight of the evidence.\nAppeal by plaintiff from opinion and award entered 20 September 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 30 October 2003.\nBrumbaugh, Mu & King, P.A., by Leah L. King, for plaintiff-appellant.\nYoung, Moore & Henderson, P.A., by J.D. Prather and Michael W. Ballance, for defendant-appellees." }, "file_name": "0712-01", "first_page_order": 742, "last_page_order": 747 }