{ "id": 8413681, "name": "MELVIN LOWERY, Employee, Plaintiff v. DUKE UNIVERSITY, Employer, SELF-INSURED, Defendant", "name_abbreviation": "Lowery v. Duke University", "decision_date": "2005-01-04", "docket_number": "No. COA04-62", "first_page": "714", "last_page": "721", "citations": [ { "type": "official", "cite": "167 N.C. App. 714" } ], "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": "561 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "320" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 381", "category": "reporters:state", "reporter": "N.C. 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App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710610 ], "year": 1997, "pin_cites": [ { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0354-01" ] }, { "cite": "535 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12122648 ], "year": 2000, "pin_cites": [ { "page": "132-33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0130-01" ] } ], "analysis": { "cardinality": 872, "char_count": 17752, "ocr_confidence": 0.758, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.4128451118192605 }, "sha256": "d15ac7a647166d11ad45e304f2d5fd4df66be74ddabaabecce05d33720030221", "simhash": "1:75774caf75c15e3d", "word_count": 2860 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and STEELMAN concur." ], "parties": [ "MELVIN LOWERY, Employee, Plaintiff v. DUKE UNIVERSITY, Employer, SELF-INSURED, Defendant" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nDefendant Duke University, self-insured, appeals from an opinion and award entered 6 October 2003 by the North Carolina Industrial Commission (hereinafter \u201cCommission\u201d) awarding plaintiff benefits.\nDefendant contends that the Commission erred when it reversed the opinion and award of the Deputy Commissioner and found that plaintiff did not constructively refuse suitable employment. Specifically, defendant asks this Court to find that there is no competent evidence to support the Commission\u2019s finding of fact that defendant-employer \u201cfailed to offer plaintiff a job that was within his restrictions and that he was physically able to perform.\u201d After careful consideration, we affirm the Industrial Commission.\nEvidence before the Industrial Commission tended to show that plaintiff began working as a utility worker at Duke University in or around 1969. At the time of his injury he was assigned to work at Carr Gymnasium, where his job duties included mopping restrooms, locker rooms and hallways; vacuuming; removing trash; wiping benches; and cleaning lobbies, equipment rooms, the gym floor, a classroom, and a stairwell and landing. Plaintiff used dust mops, wet mops, brooms, a wet vac, a vacuum cleaner, cleaning chemicals and dust cloths.\nPlaintiff suffers from poorly controlled Type II diabetes, has had complications from epilepsy in the past, and takes medication for depression. Plaintiff suffered a right knee injury as a child which resulted in his right leg being shorter than his left leg.\nOn 24 November 1999, plaintiff fell down some stairs while in the course of his employment and sustained an acute right quadriceps tendon rupture. Defendant accepted plaintiffs right knee injury as compensable and paid temporary total disability compensation pursuant to a Form 60, Employer\u2019s Admission of Employee\u2019s Right to Compensation, dated 28 April 2000.\nOn 6 December 1999, plaintiff underwent a quadriceps tendon repair procedure performed by orthopedic surgeon Lawrence Higgins, M.D. Following his surgery, plaintiff began using a cane due to right leg weakness to ensure he did not fall. On 11 April 2000, Dr. Higgins released plaintiff to return to light duty work for four weeks with a transition to full duty thereafter and continued physical therapy. Plaintiff returned to work with restrictions on 1 May 2000. Defendant-employer did not allow him to use his cane while working. Plaintiff attempted to work without his cane, but was evidently unsuccessful.\nDr. Carol Epling of Duke University Employee Occupational Health and Wellness Services took plaintiff out of work while he underwent additional physical and rehabilitation therapy. Dr. Epling referred plaintiff to Southwind Spine Rehabilitation Center to participate in a work transitioning program that plaintiff began on or about 23 May 2000. After completing physical therapy, plaintiff continued to suffer from chronic pain in his right knee and weakness of the right leg. There was also a significant atrophy of the right quadriceps.\nAfter performing a functional capacity examination on 28 September 2000, Dr. Epling released plaintiff to return to modified housekeeping work on a trial basis with restrictions, including not kneeling or squatting and not lifting or pulling more than twenty pounds without assistance and no more than forty pounds under any circumstances.\nDr. Epling further noted that plaintiff \u201c[m]ay have [sic] cane with him to work but not to use cane during work activities within restrictions previously written.\u201d She testified that \u201c[i]f he did activities [compatible with] this very lengthy list of activities restrictions ... his actual activities at the job would be quite restricted within these recommendations.\u201d She also opined that if plaintiff \u201cdidn\u2019t have a Duke job, then it would be difficult to find a job that would fit within those limitations.\u201d Dr. Epling was aware that plaintiff suffered fatigue, headaches, \u201cand some other systemic symptoms that he attributed to poor glucose control.\u201d However, she admitted-that when assessing plaintiffs functional capacity and determining work restrictions, she had failed to consider his diabetic condition. \u201cMy role in this clinic,\u201d she stated, \u201cis to assess the injury status and to write relevant indicated activity limitations for that injury.\u201d (emphasis added).\nDr. Richard F. Bruch, an orthopedic surgeon, examined plaintiff on 27 April 2001 in connection with plaintiff\u2019s application for Social Security Disability benefits. It was Dr. Bruch\u2019s opinion that, some eighteen months after his surgery, plaintiff retained a fifteen percent (15%) permanent partial impairment rating to his lower right leg, and an additional five percent (5%) permanent partial impairment rating to the leg due to preexisting weakness attributable to the old injury. Dr. Bruch also opined, taking into consideration plaintiff\u2019s medical records, X-rays and his own physical examination of plaintiff, that he was more likely to fall than someone who had normal quadriceps muscle function and tone, and that plaintiff\u2019s use of a cane \u201cwas appropriate, either at home, out in public, or in the workplace.\u201d\n\u201cThe standard of review for an appeal from an opinion and award of the Industrial Commission is limited to a determination of (1) whether the Commission\u2019s findings of fact are supported by any competent evidence in the record; and (2) whether the Commission\u2019s findings justify its conclusions of law.\u201d Goff v. Foster Forbes Glass Div., 140 N.C. App. 130, 132-33, 535 S.E.2d 602, 604 (2000). If there is competent evidence to support the findings, they are conclusive on appeal even though there is evidence to support contrary findings. Hedrick v. PPG Industries, 126 N.C. App. 354, 357, 484 S.E.2d 853, 856, disc. review denied, 346 N.C. 546, 488 S.E.2d 801 (1997). Furthermore, the evidence tending to support plaintiffs claim must be taken \u201cin the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence.\u201d Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). However, \u201cfindings of fact by the Commission may be set aside on appeal when there is a complete lack of competent evidence to support them.\u201d Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000).\nWe also emphasize that \u201c \u2018[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u2019 \u201d Dolbow v. Holland Industrial, 64 N.C. App. 695, 697, 308 S.E.2d 335, 336 (1983), disc. review denied, 310 N.C. 308, 312 S.E.2d 651 (1984) (citation omitted). \u201cThus, the Commission may assign more weight and credibility to certain testimony than other.\u201d 64 N.C. App. at 697, 308 S.E.2d at 336. See also Boles v. U.S. Air, Inc., 148 N.C. App. 493, 499, 560 S.E.2d 809, 813 (2002).\nDefendant purports to bring forward twenty-four assignments of error. In defendant\u2019s brief, however, only one argument is advanced: \u201cThe Full Commission erred when it reversed the Opinion and Award of the Deputy Commissioner and found that plaintiff\u2019s refusal of employment at Duke was justified thereby entitling plaintiff to continuing benefits.\u201d Questions raised by assignments of error in the record on appeal, but not then presented and discussed in a party\u2019s brief, are deemed abandoned. N.C. R. App. R 28(b)(6).\nThe scope of appellate review is thus limited to the Commissioner\u2019s finding of fact No. 23, and its conclusion of law No. 1.\nThe Commission\u2019s finding of fact No. 23 reads in pertinent part:\nDefendant-employer failed to offer plaintiff a job that was within his restrictions and that he was physically able to perform....\nThe Commission\u2019s conclusion of law No. 1 provides:\nOn October 10, 2000, defendant-employer offered plaintiff a job he was physically unable to perform. Plaintiff did not constructively refuse suitable employment without justification when he refused to attempt the job offered by defendant without the use of his cane. N.C.G.S. \u00a7 97-32.\nThus, we must consider (1) whether the record contains any competent evidence to support the Commission\u2019s finding of fact that defendant failed to offer plaintiff a job that was within his restrictions and that he was physically able to perform; and (2) whether the findings of fact justify the Commission\u2019s conclusion of law that plaintiff did not refuse suitable employment.\nG. S. \u00a7 97-32 (2003) 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. (Emphasis supplied).\n\u201cThe plain language of this statute requires that the proffered employment be suitable to the employee\u2019s capacity. If not, it cannot be used to bar compensation for which an employee is otherwise entitled.\u201d McLean v. Eaton Corp., 125 N.C. App. 391, 393, 481 S.E.2d 289, 290 (1997); see also Peoples v. Cone Mills Corp., 316 N.C. 426, 444-45, 342 S.E.2d 798, 810 (1986).\n\u201cThe burden is on the employer to show that plaintiff refused suitable employment.\u201d Gordon v. City of Durham, 153 N.C. App. 782, 787, 571 S.E.2d 48, 51 (2002). We have defined \u201csuitable employment,\u201d in the context of G.S. \u00a7 97-32, as \u201cany job that a \u2018claimant is capable of performing considering his age, education, physical limitations, vocational skills and experience.\u2019 \u201d Shah v. Howard Johnson, 140 N.C. App. 58, 68, 535 S.E.2d 577, 583 (2000), disc. review denied, 353 N.C. 381, 547 S.E.2d 17 (2001). Once the employer shows, to the satisfaction of the Commission, that the employee was offered suitable work, the burden shifts to the employee to show that his refusal was justified. See, e.g., Moore v. Concrete Supply Co., 149 N.C. App. 381, 390, 561 S.E.2d 315, 320 (2002) (where a position constituted \u201cmake work\u201d specially created for plaintiff, did not exist in the ordinary marketplace, was never advertised to the public, had never previously existed and was never subsequently filled after being refused by plaintiff, plaintiff was justified in refusing the position even though the work was suitable in light of his physical limitations and restrictions).\nDefendant argues that plaintiffs insistence upon using his cane while working constituted a constructive refusal to return to work. Alternatively, defendant contends that the work offered to plaintiff could have been performed adequately while plaintiff was using a cane, and his refusal of suitable work renders him ineligible to receive continuing compensation. After careful consideration, we reject defendant\u2019s arguments.\nThere is competent evidence in the record to support the Commission\u2019s finding that plaintiff was not offered suitable employment. Plaintiff reported to work on 12 October 2000, whereupon he was told he could not use his cane, and his supervisor, Michelle Logan, sent him home. Plaintiff testified before the Deputy Commissioner:\nA. [My employer] told me that... I couldn\u2019t use the cane, but I can, you know, work and hold on to walls and things and work like that, but I told them I wasn\u2019t going to do that. You know, it\u2019s something, you know, like doing dishes and things. I could hold to the walls. I didn\u2019t think that was appropriate for me to do.\nQ. Why didn\u2019t you think that was appropriate for you to do?\nA. I shouldn\u2019t work, you know, holding on to walls and things, you know, holding on to desks and walls and things.\nQ. So you wanted to do your job with your cane?\nA. I wanted \u2014 I wanted to do my job without my cane, but I was afraid to do my job without my cane. I really didn\u2019t want to\u2014 I really didn\u2019t want to \u2014 you know, work with the cane, period. I wanted to work, period, but like I say, I was afraid to work without my cane.\nQ. Now could you perform your job with your cane?\nA. Well, no. Anybody with, you know, common sense couldn\u2019t\u2014 you know, couldn\u2019t perform my job with a cane in your hand. How you going to work with a cane in your hand? But I tried, you know.\nPlaintiff also testified that after completing his course of physical therapy, he continued to experience pain and weakness in his right leg. He stated that he fell three or four times while using the cane, and that he refused to work without his cane because he feared another serious fall.\nMs. Logan testified that the job of utility worker cannot be performed with a cane because the functions of utility worker require the use of both hands. \u201cThey can\u2019t use one hand to hold on to the cane and the other hand to mop or dust mop or run a machine or anything like that.\u201d She further testified that when plaintiff was discharged from physical therapy and returned to restricted work, it was her understanding that \u201che was not supposed to use the cane at that time.\u201d The work she asked plaintiff to do included \u201cother options that he could use if he needed that clutch,\u201d such as \u201cwall borders around the wall\u201d inside the tennis building. She asked plaintiff to blow off an indoor tennis court using an electric leaf blower, and suggested that if he got tired \u201che could sit down on [the] benches and finish the court.\u201d Ms. Logan testified that janitorial duties ordinarily required standing on one\u2019s feet the entire shift, except for breaks, and that there is no position at Duke in janitorial or housekeeping services that would permit the employee to work while using a cane.\nPlaintiff\u2019s testimony indicates that he did not understand the specific work restrictions Dr. Epling had given him: \u201cThe only thing I know, they put me on light duty work, but like I said, it ain\u2019t no light duty work out there to do.\u201d\nWe conclude the Commission did not err when it determined that plaintiff did not constructively refuse suitable employment. As the employer\u2019s own evidence shows, the work plaintiff was instructed to do did not fall within Dr. Epling\u2019s restrictions. Ms. Logan testified that she believed plaintiff could clean bathrooms, including \u201ccleaning the sinks and toilets,\u201d even though his work restrictions stated he could do no kneeling or squatting. Dr. Epling testified that plaintiff would not be able to clean bathrooms insofar as that task required squatting or kneeling. Ms. Logan stated he should be able to \u201cpull[] trash,\u201d even though the restrictions state that he must have assistance when lifting between 20 and 40 pounds, and that he must not lift more than 40 pounds. Plaintiff testified that he experienced great difficulty when he attempted to lift full trash bags from their containers, and that he had to remove some of the trash from the bags before he could lift the bags.\nDespite Dr. Epling\u2019s recommendation that plaintiff \u201cmay sweep and blow off tennis court but speed and endurance will progress with time,\u201d Dr. Epling was unfamiliar with the occupational demands of using an electric-powered leaf blower and at her deposition was unable to answer, to a reasonable degree of medical certainty, questions pertaining to whether or not plaintiff could work safely with a leaf blower, either with or without a cane.\nThe plaintiffs testimony and the medical opinion of Dr. Bruch further support the Commission\u2019s finding that the job offered to plaintiff was one he was physically unable to perform. Accordingly, the findings of fact justify the Commission\u2019s conclusion of law that \u201c[p]laintiff did not constructively refuse suitable employment.\u201d\nFor the foregoing reasons, the Opinion and Award of the Industrial Commission is affirmed.\nAffirmed.\nJudges MCCULLOUGH and STEELMAN concur.\n. Defendant further takes exception to finding of fact No. 21 which states, in pertinent part, \u201cit was medically necessary for plaintiff to use his cane at all times due to his high risk of falling.\u201d Inasmuch as the Commission\u2019s conclusion of law that plaintiff was not offered suitable employment does not depend upon a finding that the cane was medically necessary, we need not inquire into whether the record supports the Commission\u2019s finding. Assuming, arguendo, that the cane was not medically necessary, the employment procured for plaintiff was nevertheless unsuitable.\n. Evidence of record indicates the actual date plaintiff returned to work was 12 October 2000.\n. Because competent evidence of record supports the Commission\u2019s finding of fact that plaintiff was not offered suitable employment, the Commission need not have addressed whether plaintiff\u2019s rejection of employment was justified.", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Perry, Perry & Perry, P.A., by Robert T. Perry, for plaintiff - appellee.", "Cranfill, Sumner & Hartzog, L.L.P., by Kari R. Johnson, for defendant-appellant." ], "corrections": "", "head_matter": "MELVIN LOWERY, Employee, Plaintiff v. DUKE UNIVERSITY, Employer, SELF-INSURED, Defendant\nNo. COA04-62\n(Filed 4 January 2005)\nWorkers\u2019 Compensation\u2014 suitable employment \u2014 constructive refusal\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that plaintiff utility worker did not constructively refuse suitable employment when he refused to attempt the job offered by defendant after the injury to plaintiff\u2019s right knee and leg, because: (1) competent evidence in the record supported the Commission\u2019s finding that plaintiff was not offered suitable employment when he was told that he could not use his cane while working; (2) the work plaintiff was instructed to do did not fall within the doctor\u2019s restrictions; and (3) plaintiff\u2019s testimony and the medical opinion of another doctor further supported the Commission\u2019s finding that the job offered to plaintiff was one he was physically unable to perform.\nAppeal by defendant from Opinion and Award entered 6 October 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 1 November 2004.\nPerry, Perry & Perry, P.A., by Robert T. Perry, for plaintiff - appellee.\nCranfill, Sumner & Hartzog, L.L.P., by Kari R. Johnson, for defendant-appellant." }, "file_name": "0714-01", "first_page_order": 744, "last_page_order": 751 }