{ "id": 8468017, "name": "PATRICIA BROOKS, Employee, Plaintiff-Appellee v. CAPSTAR CORPORATION, Employer, THE HARTFORD, Carrier, Defendants-Appellants", "name_abbreviation": "Brooks v. Capstar Corp.", "decision_date": "2005-01-18", "docket_number": "No. COA03-1064", "first_page": "23", "last_page": "36", "citations": [ { "type": "official", "cite": "168 N.C. App. 23" } ], "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": "518 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "205" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 452", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145362 ], "year": 1999, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0452-01" ] }, { "cite": "449 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "764" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 126", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524468 ], "year": 1994, "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0126-01" ] }, { "cite": "470 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "354", "parenthetical": "quoting Estes v. N.C. State University, 117 N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994)" }, { "page": "354" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918005 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "477", "parenthetical": "quoting Estes v. N.C. State University, 117 N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994)" }, { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0473-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "599 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "358 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987216 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0701-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "515 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "219" } ], "opinion_index": 0 }, { "cite": "350 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131934 ], "year": 1999, "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0549-01" ] }, { "cite": "519 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155858 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0042-01" ] }, { "cite": "534 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131899, 132118, 132190, 132075 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0310-01", "/nc/350/0310-04", "/nc/350/0310-03", "/nc/350/0310-02" ] }, { "cite": "510 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "709" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237233 ], "year": 1999, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0151-01" ] }, { "cite": "123 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "613" } ], "opinion_index": 0 }, { "cite": "256 N.C. 175", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571678 ], "year": 1962, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0175-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "413", "parenthetical": "quoting Brewer v. Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "680", "parenthetical": "quoting Brewer v. Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "530 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "553" } ], "opinion_index": 0 }, { "cite": "352 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684964 ], "year": 2000, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0109-01" ] }, { "cite": "312 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "parenthetical": "citation omitted" }, { "page": "710" } ], "opinion_index": 1 }, { "cite": "310 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403756, 2395921, 2403313, 2394261, 2401497 ], "year": 1984, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/310/0308-03", "/nc/310/0308-01", "/nc/310/0308-04", "/nc/310/0308-05", "/nc/310/0308-02" ] }, { "cite": "308 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "336" } ], "opinion_index": 1 }, { "cite": "64 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527561 ], "year": 1983, "pin_cites": [ { "page": "696" } ], "opinion_index": 1, "case_paths": [ "/nc-app/64/0695-01" ] }, { "cite": "561 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "294", "parenthetical": "A presumption exists that an employee will eventually recover and go back to work and they must make \"reasonable efforts to go back to work.\"" } ], "opinion_index": 1 }, { "cite": "149 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125602 ], "year": 2002, "pin_cites": [ { "page": "114-15", "parenthetical": "A presumption exists that an employee will eventually recover and go back to work and they must make \"reasonable efforts to go back to work.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/149/0105-01" ] }, { "cite": "441 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "149", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "114 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527096 ], "year": 1994, "pin_cites": [ { "page": "74", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/114/0069-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 1 }, { "cite": "373 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "323 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562113, 2566065, 2560632, 2561049, 2561822 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/nc/323/0171-04", "/nc/323/0171-03", "/nc/323/0171-01", "/nc/323/0171-05", "/nc/323/0171-02" ] }, { "cite": "368 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "390-91" } ], "opinion_index": 1 }, { "cite": "90 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524683 ], "year": 1988, "pin_cites": [ { "page": "400-01" } ], "opinion_index": 1, "case_paths": [ "/nc-app/90/0397-01" ] }, { "cite": "731 F.2d 199", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1943782 ], "year": 1984, "pin_cites": [ { "page": "201" } ], "opinion_index": 1, "case_paths": [ "/f2d/731/0199-01" ] }, { "cite": "599 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 16, "year": 2004, "pin_cites": [ { "page": "514" }, { "page": "514" }, { "page": "514" }, { "parenthetical": "emphasis supplied" }, { "page": "515" }, { "page": "515" }, { "page": "514", "parenthetical": "the applicable standard in reviewing the employee's efforts is whether she \"diligently sought\" employment" }, { "page": "514" }, { "page": "514" }, { "page": "515" }, { "page": "515" } ], "opinion_index": 1 }, { "cite": "358 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987216 ], "weight": 8, "year": 2004, "pin_cites": [ { "page": "709" }, { "page": "709" }, { "page": "709" }, { "page": "709-10" }, { "page": "708-09" }, { "page": "709-10" }, { "page": "710" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0701-01" ] } ], "analysis": { "cardinality": 1063, "char_count": 32015, "ocr_confidence": 0.732, "pagerank": { "raw": 2.6202358382367473e-07, "percentile": 0.8212770319814012 }, "sha256": "d539211506ea2ab24ac72dacd33349a1baa1841c4af6c04975b27a4954da34e9", "simhash": "1:a6616c2816bdc8d7", "word_count": 4916 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge TYSON dissents with a separate opinion." ], "parties": [ "PATRICIA BROOKS, Employee, Plaintiff-Appellee v. CAPSTAR CORPORATION, Employer, THE HARTFORD, Carrier, Defendants-Appellants" ], "opinions": [ { "text": "McGEE, Judge.\nCapstar Corporation (employer) and The Hartford, carrier (collectively defendants) appeal from an opinion and award of the North Carolina Industrial Commission (the Commission) filed 29 April 2003 finding and concluding that Patricia Brooks (plaintiff) complied with the vocational services provided by defendants and that she had not constructively refused to accept employment. Accordingly, defendants were ordered to reinstate plaintiff\u2019s total disability compensation.\nThe evidence before the Commission tended to show that at the date of injury, plaintiff had worked for employer as a seamstress for ten years. Plaintiff was injured on 27 January 1997 when her left arm and elbow were struck by a door as she turned to see a coworker. Defendants accepted the claim as compensable through a Form 60.\nDr. Wodecki initially diagnosed plaintiff with a left elbow contusion on 28 January 1997, and she was allowed to return to work with lifting restrictions. Plaintiff continued to complain of pain and Dr. Wodecki referred plaintiff to Dr. Bryon Dunaway (Dr. Dunaway). Dr. Dunaway diagnosed plaintiff on 28 March 1997 as having a \u201cleft medial elbow contusion resulting in a chronic medial tennis elbow.\u201d Dr. Dunaway released plaintiff to return to work. He also noted that plaintiffs motivation for returning to work was low. Plaintiff continued to seek treatment from Dr. Dunaway until 21 May 1997. During this time, plaintiff complained of neck, shoulder, arm, and hand pain attributable to a prior motor vehicle accident. Dr. Dunaway ultimately diagnosed plaintiff as having a disc herniation.\nPlaintiff next sought treatment on 5 June 1997 from Dr. Larry Pearce (Dr. Pearce) who provided pain management treatment for plaintiff through July 1998. Dr. Pearce signed a Form 28U on 6 November 1997, but defendants did not reinstate plaintiff\u2019s benefits since Dr. Pearce was not plaintiff\u2019s authorized treating physician. However, after the Commission authorized Dr. Pearce as a treating physician for plaintiff, defendants reinstated plaintiffs benefits. Plaintiff next sought treatment from Dr. T. Kern Carlton (Dr. Carlton) on 18 April 2000.\nA deputy commissioner entered an opinion and award on 25 October 2000 ordering defendants to pay plaintiff temporary total disability compensation until further order of the Commission. The deputy commissioner also concluded that as a condition of receiving these benefits, plaintiff was required to \u201ccooperate fully with medical and vocational services[.]\u201d\nIn a Form 24 dated 5 February 2001, defendants requested that plaintiffs compensation be suspended, alleging that plaintiff had \u201cimpeded [defendants\u2019] efforts at returning [plaintiff] to suitable employment[.]\u201d Plaintiff disputed that compensation should be suspended on the ground that \u201cno suitable employment ha[d] been found, offered, approved and [was] available.\u201d In an order filed 29 March 2001, a special deputy commissioner approved defendants\u2019 application to suspend plaintiffs compensation from the date the Form 24 was filed until plaintiff demonstrated compliance with the vocational and rehabilitation services.\nA deputy commissioner entered an opinion and award on 29 August 2002 rescinding the special deputy commissioner\u2019s order which had allowed defendants to suspend plaintiff\u2019s temporary total disability compensation. Defendants appealed to the Commission. In an opinion and award filed 29 April 2003, the Commission concluded that plaintiff had complied with the vocational services provided by defendants and that defendants\u2019 Form 24 application was improvidently granted. Accordingly, the Commission vacated the special deputy commissioner\u2019s order allowing defendants to suspend plaintiff\u2019s compensation. The Commission further ordered that plaintiff\u2019s benefits be reinstated effective 8 February 2001 until further order of the Commission. Defendants appeal.\nThis Court\u2019s review of an opinion and award of the Commission is \u201climited 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 Deese v. Champion Int\u2019l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). \u201cUnder our Workers\u2019 Compensation Act, \u2018the Commission is the fact finding body.\u2019 \u201d Adams v. AVX Corp., 349 N.C. 676, 680, 509 S.E.2d 411, 413 (1998) (quoting Brewer v. Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608, 613 (1962)). \u201cThe facts found by the Commission are conclusive upon appeal to this Court when they are supported by competent evidence, even when there is evidence to support contrary findings.\u201d Pittman v. International Paper Co., 132 N.C. App. 151, 156, 510 S.E.2d 705, 709, disc. review denied, 350 N.C. 310, 534 S.E.2d 596, aff\u2019d, 351 N.C. 42, 519 S.E.2d 524 (1999). So long as \u201cthere is any credible evidence to support the findings, the reviewing court is bound by it.\u201d Roman v. Southland Transp. Co., 350 N.C. 549, 556, 515 S.E.2d 214, 219 (1999).\nDefendants first argue in multiple assignments of error that the Commission erred in concluding that plaintiff complied with the vocational rehabilitation services and in concluding that the Form 24 was improvidently granted. Defendants argue that plaintiff had a suitable work opportunity, that she sabotaged the vocational rehabilitation efforts, and that although capable of work, she \u201cchose to thwart efforts to obtain suitable employment.\u201d For the reasons stated below, we disagree.\nThe Commission specifically found that:\n13. The greater weight of the evidence of record shows that from December 20, 2001 to March 29, 2001, plaintiff was cooperative with the vocational case manager, Ms. O\u2019Kane. Plaintiff did whatever Ms. O\u2019Kane asked her to do and met with Ms. O\u2019Kane on a regular basis.\n14. Plaintiff did not intentionally sabotage vocational efforts regarding the security job available with Statesville Auto Auction.\nAccordingly, the Commission concluded that:\n1. Plaintiff has complied with the vocational services provided by defendants. Plaintiff has not constructively refused to accept suitable employment available to her that she could have obtained with due diligence. N.C. Gen. Stat. \u00a7 97-25; 97-32.\n2. In that plaintiff has not refused to comply with vocational rehabilitation, the Form 24 application was improvidently granted and defendants are not entitled to suspend payment of compensation. N.C. Gen. Stat. \u00a7 97-25.\nAs support for their first argument, defendants assert that plaintiff \u201chad an opportunity for suitable work with Statesville Auto Auction within the guidelines set by her doctor, but she sabotaged the efforts of vocational rehabilitation[.]\u201d Defendants also emphasize plaintiffs interview with Cracker Barrel as support for their argument.\nDefendants assert that plaintiff\u2019s vocational case manager, Katherine O\u2019Kane (Ms. O\u2019Kane), testified that plaintiff \u201cwas attempting to impede [defendants\u2019 efforts at suitable job placement.\u201d Defendants primarily r.ely on the events surrounding plaintiff\u2019s potential job as a security guard at the Statesville Auto Auction. Ms. O\u2019Kane prepared a job analysis for the available position and plaintiff\u2019s counsel responded in an 18 October 2000 letter that the position would be suitable with the exception of the report writing requirement and the time of work. Nonetheless, plaintiff\u2019s counsel stated that he would \u201crecommend and encourage [plaintiff] to apply.\u201d Ms. O\u2019Kane forwarded the job analysis to Dr. Carlton and, in a letter dated 27 October 2000, Dr. Carlton stated that the position was \u201cwithin [plaintiff\u2019s] capabilities if it does not require excessive report writing.\u201d Ms. O\u2019Kane provided Dr. Carlton with clarification on the report writing requirement.\nMs. O\u2019Kane\u2019s 14 November 2000 report indicates that she and plaintiff met with two managers at Statesville Auto Auction on 7 November 2000 about the security guard position. The area manager indicated that an integral part of the position was the ability to read vehicle identification numbers on cars and make sure they matched the numbers on paper. At the meeting, plaintiff indicated that she could read the numbers on the vehicles but that she could not read the numbers on the paper. Plaintiff also mentioned that when her hand was swollen, she had difficulty focusing on small objects. Plaintiff further expressed to the managers that she was unable to write. In the report, Ms. O\u2019Kane stated that plaintiff \u201coften focuses on what she cannot do versus what she can do, and expresses this to the employer which is not the most effective method to interview.\u201d Ms. O\u2019Kane also noted that plaintiff\u2019s \u201cmotivation to return to work is questionable because of how she presents herself to employer[.]\u201d\nIn a letter dated 19 December 2000, Dr. Carlton approved the security guard position. However, when Ms. O\u2019Kane contacted the Statesville Auto Auction on 20 December 2000, she was told that no positions were available.\nAs additional support for their argument, defendants also point to Ms. O\u2019Kane\u2019s testimony regarding when she accompanied plaintiff to an employer meeting at Cracker Barrel on 4 October 2000 for a position as a hostess. Ms. O\u2019Kane stated that there was \u201ca little bit of tension\u201d at the meeting because plaintiff had brought along work restrictions from Dr. Pearce that she wanted to review with the potential employer. Ms. O\u2019Kane attempted to explain that the restrictions were not applicable because Dr. Pearce was not plaintiffs treating physician. In her report dated 9 October 2000, Ms. O\u2019Kane stated that the Cracker Barrel manager \u201crelayed that he [did] not feel that [plaintiff] want[ed] to work\u201d even though Cracker Barrel makes an effort to \u201cwork with individuals with disabilities or work restrictions[.]\u201d\nIn spite of the testimony and evidence cited by defendants, we conclude that there is sufficient evidence in the record to support the disputed findings of fact. Ms. O\u2019Kane testified extensively about her experience working as plaintiff\u2019s vocational case manager. She testified that prior to the interview for the security guard position, plaintiff had attended every meeting, had been cooperative, and had followed up on all leads about which Ms. O\u2019Kane had instructed her.\nRegarding the interview process for the security guard position, Ms. O\u2019Kane was asked whether plaintiff cooperated with her up until 20 December 2000. Ms. O\u2019Kane responded affirmatively but then stated that she thought their meeting with the two managers \u201ccould have been handled a little differently.\u201d However, she further stated that she did not know \u201cif that would be deemed [] cooperative or uncooperative.\u201d Ms. O\u2019Kane also testified that after 20 December 2000, plaintiff \u201cwas cooperative and did . . .. whatever I asked her to do and met with me on a regular basis.\u201d Further, the following exchange occurred between Ms. O\u2019Kane and plaintiff\u2019s counsel:\nQ. Her attitude towards work and finding work up until you stopped working with her, what was it generally?\nA. Her attitude? I think she was just very nervous to try something new.\nQ. Did she cooperate with you?\nA. She did, but then there\u2019s the gray area of the employer meeting at the Statesville Auto Auction. I wouldn\u2019t say that it was-n\u2019t not \u2014 was cooperating or not cooperating with me. It just added some issues, I guess, to possibly meeting with another employer in the future possibly.\nWhen asked on cross-examination to elaborate, Ms. O\u2019Kane clarified that she thought \u201cgenerally, yes, [plaintiff] . . . did everything [Ms. O\u2019Kane] asked her to do.\u201d However, Ms. O\u2019Kane again testified about how plaintiff expressed her inability to read the vehicle identification numbers.\nWhen asked on cross-examination why Ms. O\u2019Kane thought plaintiff was not offered the security guard position, Ms. O\u2019Kane did state that plaintiff could have presented her alleged inability to read the vehicle identification numbers in a more favorable manner. For example, Ms. O\u2019Kane indicated that plaintiff could have asked to come back after getting glasses. However, despite this testimony, Ms. O\u2019Kane also specifically stated that she did not think that plaintiff \u201cintentionally did anything to mess anything up with the employerf.]\u201d She further stated that she was \u201cnot saying specifically that it was messed up[.]\u201d\nThis testimony is in contrast to the evidence presented to the Commission in Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 599 S.E.2d 508 (2004), where the defendant argued the plaintiff constructively refused suitable employment. In Johnson, a vocational rehabilitation and employment counselor testified he identified approximately twelve jobs that were suitable for the plaintiff, given plaintiff\u2019s vocational background and physical limitations. The counselor testified the plaintiff failed to keep appointments for some job interviews that were arranged for him and that the plaintiff had \u201cbalky behavior\u201d at the job interviews he did attend. He also testified that in his opinion the plaintiff could have found work if he had made a diligent effort to do so. In spite of the counselor\u2019s testimony, the Commission found that \u201c \u2018in no manner were plaintiff\u2019s actions regarding these job leads inappropriate and he did not constructively refuse suitable employment.\u2019 \u201d Johnson, 358 N.C. at 710, 599 S.E.2d at 514. However, the Supreme Court determined this finding was not supported by any evidence cited in the Commission\u2019s opinion and award. The Court stated \u201c [t]he Commission\u2019s opinion and award should have contained specific findings as to what jobs plaintiff [was] capable of performing and whether jobs [were] reasonably available for which plaintiff would have been hired had he diligently sought them.\u201d Id.\nAlthough there was evidence that plaintiff in the case before us could have presented herself more favorably, there was no evidence, as there was in Johnson, that plaintiff failed to keep appointments for job interviews or that she had \u201cbalky behavior\u201d at her job interviews. There is competent evidence in the record in this case that supports the Commission\u2019s findings that plaintiff was cooperative with Ms. O\u2019Kane and did not intentionally sabotage defendants\u2019 efforts to find her suitable employment. Therefore, the Commission did not err in its findings. These findings support the conclusions that plaintiff complied with the vocational rehabilitation and that the Form 24 application was improvidently granted. Defendants\u2019 argument is without merit.\nDefendants next argue that the Commission erred in awarding plaintiff temporary total disability from 8 February 2001 until further order of the Commission since there was no competent evidence or finding of fact that plaintiff was disabled as defined by N.C. Gen. Stat. \u00a7 97-2(9). Defendants cite Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982) to show what the Commission must find in order to support a conclusion of disability. However, for the reasons stated below, we find this argument unpersuasive.\nThe case before our Court involves an admitted claim. Defendants filed a Form 60 dated 2 April 1997 admitting plaintiff\u2019s right to compensation because of the arm injury. Furthermore, the parties stipulated that \u201cplaintiff sustained an admittedly compensable injury to her left arm on January 28, 1997.\u201d In the Form 24 filed by defendants, employer checked the box stating that \u201c[t]he employer admitted employee\u2019s right to compensation pursuant to N.C. Gen. Stat. \u00a7 97-18(b).\u201d Thus, as stated in the Commission\u2019s opinion and award, the only issue before the Commission was \u201cwhether plaintiff has complied with vocational rehabilitation as ordered by Deputy Commissioner Lorrie Dollar on October 25, 2000.\u201d Whether or not plaintiff was disabled was not at issue. Rather, the dispute focused on whether or not plaintiff complied with vocational rehabilitation efforts. Accordingly, the Commission did not err by not finding as a fact that plaintiff was disabled. This argument is without merit.\nIn addition to addressing defendants\u2019 arguments, we note that plaintiff asserts that she is entitled to have defendants pay her expenses incurred in connection with the present appeal. Under N.C. Gen. Stat. \u00a7 97-88 (2003), the Commission or a reviewing court may award costs, including attorney\u2019s fees, to an injured employee \u201c \u2018if (1) the insurer has appealed a decision to the full Commission or to any court, and (2) on appeal, the Commission or court has ordered the insurer to make, or continue making, payments of benefits to the employee.\u2019 \u201d Brown v. Public Works Comm., 122 N.C. App. 473, 477, 470 S.E.2d 352, 354 (1996) (quoting Estes v. N.C. State University, 117 N.C. App. 126, 128, 449 S.E.2d 762, 764 (1994)). In the case before us, defendants appealed the deputy commissioner\u2019s decision that temporary total disability compensation be paid to plaintiff. On appeal, the Commission affirmed the award of temporary total disability compensation. Defendants now appeal to this Court the Commission\u2019s decision, and we too affirm the decision that defendants reinstate plaintiff\u2019s disability compensation. The requirements of N.C. Gen. Stat. \u00a7 97-88 are therefore satisfied, and we grant plaintiff\u2019s request for expenses incurred in this appeal in our discretion. See Flores v. Stacy Penny Masonry Co., 134 N.C. App. 452, 459, 518 S.E.2d 200, 205 (1999); Brown, 122 N.C. App. at 477, 470 S.E.2d at 354. Accordingly, this matter is remanded to the Commission with instruction that the Commission determine the amount due plaintiff for the expenses she incurred as a result of the appeal to this Court, including reasonable attorney\u2019s fees.\nFor the foregoing reasons, the opinion and award of the Commission is affirmed and this matter remanded for a determination of the appropriate amount of costs to be taxed to defendants.\nAffirmed; remanded for costs determination.\nJudge TIMMONS-GOODSON concurs.\nJudge TYSON dissents with a separate opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "TYSON, Judge\ndissenting.\nThe majority affirms the Commission\u2019s Opinion and Award by attempting to distinguish this case from our Supreme Court\u2019s decision in Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 599 S.E.2d 508 (2004). Johnson is directly on point and controlling precedent. The Commission must make relevant and specific findings of fact, which it failed to do in this case. I vote to reverse and remand the Commission\u2019s opinion and award which held that plaintiff: (1) complied with the vocational services provided by the defendants; and (2) did not constructively refuse to accept suitable employment. I respectfully dissent.\nI. Johnson v. Southern Tire Sales & Service\nIn Johnson, our Supreme Court outlined the appropriate legal standard to be applied to determine whether a plaintiff constructively refused suitable employment. \u201cAn employer need not show that the employee was specifically offered a job by some other employer in order to prove that the employee was capable of obtaining suitable employment.\u201d Johnson, 358 N.C. at 709, 599 S.E.2d at 514 (citing Trans-State Dredging v. Benefits Review Bd., 731 F.2d 199, 201 (4th Cir. 1984)). \u201cInstead, the crucial question is whether the employee can obtain a job.\u201d Johnson, 358 N.C. at 709, 599 S.E.2d at 514 (citing Bridges v. Linn-Corriher Corp., 90 N.C. App. 397, 400-01, 368 S.E.2d 388, 390-91, disc. rev. denied, 323 N.C. 171, 373 S.E.2d 104 (1988)).\nN.C. Gen. Stat. \u00a7 97-32 (2003) provides that, \u201cIf 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.\u201d \u201c[I]f an employer makes a showing that the employee refused a suitable job, the employee may respond by \u2018producing evidence that either contests the availability of other jobs or his suitability for those jobs, or establishes that he has unsuccessfully sought the employment opportunities located by his employer.\u2019 \u201d Johnson, 358 N.C. at 709, 599 S.E.2d at 514 (quoting Burwell v. Winn-Dixie Raleigh, Inc., 114 N.C. App. 69, 74, 441 S.E.2d 145, 149 (1994) (citation omitted)).\nIn Johnson, the defendants presented evidence to show the plaintiff constructively refused employment. 358 N.C. at 709-10, 599 S.E.2d at 514. \u201cAs a result [of this evidence], relevant findings by the Commission were required.\u201d Id. at 710, 599 S.E.2d at 514. The Johnson Court noted the Commission made two factual findings. First, \u201cin no manner were plaintiffs actions regarding these job leads inappropriate and he did not constructively refuse suitable employment.\u201d Id. Second, the Commission found that, \u201cbecause no job was ever offered to plaintiff, it cannot be found that he unjustifiably refused suitable employment.\u201d Id.\nOur Supreme Court concluded the first finding was \u201cnot supported by any evidence cited in the . . . opinion and award .... [It] should have contained specific findings as to what jobs plaintiff is capable of performing and whether jobs are reasonably available for which plaintiff would have been hired had he diligently sought them.\u201d Id. (emphasis supplied). The Court determined the second finding was \u201clegally inadequate,\u201d as it completely negated the doctrine of constructive refusal. Id. at 710, 599 S.E.2d at 515.\nDue to the Commission\u2019s insufficient and \u201clegally inadequate\u201d findings, our Supreme Court reversed and remanded the matter for more specific factual findings. Id. at 711, 599 S.E.2d at 515.\nII. Fully Comply and Constructive Refusal\nDefendants argue that plaintiff did not \u201cfully comply\u201d with her employer\u2019s attempts to find her suitable employment following her injury in January 1997 and constructively refused suitable employment. They introduced the testimony of Ms. O\u2019Kane and Dr. Carlton\u2019s deposition as evidence.\nMs. O\u2019Kane wrote in her vocational reports that plaintiff\u2019s \u201cmotivation to return to work is questionable because of how she presents herself to the employer\u201d and noted plaintiff always focused on activities she was incapable of performing. Her lack of motivation was apparent during the two interviews Ms. O\u2019Kane set up and attended with plaintiff. First, plaintiff interviewed at Cracker Barrel in October 2000. She \u201cinterjected several times what duties she could not perform while the manager reviewed the job description.\u201d Plaintiff presented a note to the manager detailing purported work restrictions from a doctor who was not authorized by the Commission to act as her treating physician. Afterwards, the interviewing manager confided in Ms. O\u2019Kane that plaintiff seemed \u201cdefensive\u201d and \u201che wasn\u2019t sure whether [plaintiff] wanted to work or not,\u201d even though Cracker Barrel was willing to accommodate its employees\u2019 physical limitations. Ms. O\u2019Kane testified that \u201cthere was a little bit of tension\u201d and plaintiff \u201ccould have presented herself a little more favorably to the manager.\u201d\nSecond, plaintiff interviewed with the Statesville Auto Auction in November 2000. The job entailed plaintiff reading vehicle identification numbers (\u201cVIN\u201d) off of motor vehicles, compare them to VIN listed on a sheet, and writing reports concerning vehicular damage. Plaintiff complained that she could not read the VIN on the sheet and that her hand would swell after writing. The interviewer offered to write reports for her, suggested she come back with some reading glasses, and expressed a desire to employ her. Again, Ms. O\u2019Kane testified that plaintiff could have presented herself in a better manner. Ms. O\u2019Kane wrote in her 14 November 2000 report after the interview that plaintiff \u201coften focuses on what she cannot do versus what she can do, and expresses this to the employer.\u201d She later testified that \u201cit just added some issues... to possibly meeting with another employer in the future . . . .\u201d Both the jobs available at Cracker Barrel and the Statesville' Auto Auction fit the work restrictions set out by plaintiff\u2019s treating physician at the time.\nDr. Carlton testified to plaintiff\u2019s lack of motivation to return to work in his deposition. He noted plaintiff lacked economic motivation to return to work as shown by her application for social security disability payments and her continued receipt of defendants\u2019 payments without working. Dr. Carlton indicated he offered constant encouragement for plaintiff to find suitable employment. At the time plaintiff interviewed with Statesville Auto Auction, she had no physical restrictions on her employment. Yet, she objected to performing any physical activity and failed to cite any restriction from her injury that would have prevented her from taking the job.\nFinally, Dr. Carlton testified to other activities plaintiff was capable of and was actually performing as evidence of her capacity to work, such as light housework, driving, and babysitting and caring for her grandchildren. As in Johnson, the Commission failed to make any relevant findings of fact on defendants\u2019 competent and uncontra-dicted evidence.\nSeveral additional factors from the record are compelling. First, plaintiff was injured on 27 January 1997. No evidence shows that she has worked at gainful employment since her injury. Second, the record refers to just two interviews plaintiff attended over the course of almost eight years. Third, plaintiff admitted, \u201cI just did whatever [Ms. O\u2019Kane] was telling me to do.\u201d The record is devoid of any indication that plaintiff was proactive in obtaining employment. Fourth, competent and uncontested testimony proved plaintiff is capable of physical activity beyond any limitations imposed by her injury. Fifth, the record fails to show that plaintiff contacted Dr. Carlton to inquire why he was delayed in responding to the Statesville Auto Auction job. Sixth, a Deputy Commissioner suspended compensation payments to plaintiff for failing to fully comply with vocational rehabilitation services provided by defendants after finding plaintiff \u201cfailed to present herself in a manner befitting a person genuinely seeking employment.\u201d\nThese factors show that plaintiff has not appropriately, actively, or \u201cdiligently sought\u201d suitable employment and has made no \u201creasonable effort to return to work,\u201d as is required by law. Johnson, 358 N.C. at 708-09, 599 S.E.2d at 514 (the applicable standard in reviewing the employee\u2019s efforts is whether she \u201cdiligently sought\u201d employment) (citations omitted); Effingham v. Kroger Co., 149 N.C. App. 105, 114-15, 561 S.E.2d 287, 294 (2002) (A presumption exists that an employee will eventually recover and go back to work and they must make \u201creasonable efforts to go back to work.\u201d). Doing \u201cwhatever [Ms. O\u2019Kane] was telling me to do\u201d is insufficient to: (1) overcome defendants\u2019 evidence of plaintiffs refusal to work; (2) overcome the presumption that plaintiff is capable of performing work; and (3) show that she \u201cdiligently sought\u201d to return to work. The Commission\u2019s opinion and award and the majority\u2019s opinion places the entire burden to procure a job for plaintiff on defendants while allowing plaintiff every opportunity to sabotage defendants\u2019 efforts. Plaintiff is allowed to be recalcitrant by sitting idly by and not make any effort to secure, much less \u201cdiligently seek,\u201d employment.\nThese observations, combined with defendants\u2019 uncontradicted proffered evidence, show: (1) suitable employment was available for plaintiff; and (2) she constructively refused and sabotaged efforts to procure suitable employment. See Johnson, 358 N.C. at 709-10, 599 S.E.2d at 514.\nIII. Commission\u2019s Findings\nThe Commission made three findings of fact regarding whether plaintiff fully complied with defendants\u2019 search for suitable employment.\n13. The greater weight of the evidence of record shows that from December 20, 2001 to March 29, 2001 [sic], plaintiff was cooperative with the vocational case manager, Ms. O\u2019Kane. Plaintiff did whatever Ms. O\u2019Kane asked her to do and met with Ms. O\u2019Kane on a regular basis.\n14. Plaintiff did not intentionally sabotage vocational efforts regarding the security job available with Statesville Auto Auction.\n15. The Full Commission finds by the greater weight of the credible evidence that plaintiff has complied with vocational rehabilitation as ordered by Deputy Commissioner Dollar on October 25, 2000.\n(Emphasis supplied).\nAs in Johnson, the Commission made no specific findings \u201cas to what jobs plaintiff is capable of performing and whether jobs are reasonably available for which plaintiff would have been hired had [she] diligently sought them.\u201d 358 N.C. at 710, 599 S.E.2d at 514. The Commission\u2019s findings are not supported by any competent evidence. See id. at 710-11, 599 S.E.2d at 515; see also Dolbow v. Holland Industrial, 64 N.C. App. 695, 696, 308 S.E.2d 335, 336 (1983), disc. rev. denied, 310 N.C. 308, 312 S.E.2d 651 (1984) (citation omitted) (review of the Commission\u2019s order is two-fold: \u201c(1) whether there was any competent evidence before the Commission to support its findings of fact; and (2) whether . . . the findings of fact of the Commission justify its legal conclusions and decisions.\u201d)\nThe Commission found that: (1) the Cracker Barrel job was not suitable for plaintiff pursuant to Dr. Carlton\u2019s restrictions (despite such restrictions not existing at the time of her interview); and (2) plaintiff was not responsible for losing the job opportunity at Statesville Auto Auction. However, as our Supreme Court explained in response to similar findings in Johnson, \u201cthese findings alone are insufficient to support the Commission\u2019s conclusions of law and do not cure the error resulting from the lack of findings concerning the suitability of alternative employment.\u201d Id. at 710, 599 S.E.2d at 515.\nIV. Conclusion\nJohnson v. Southern Tire Sales & Service is controlling precedent at bar. I would reverse and remand the case to the Commission with instructions to make further and more specific findings of fact. In light of my view that this case must be remanded, it is premature to determine whether to award expenses to plaintiff. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge" } ], "attorneys": [ "David P. Parker, for plaintiff-appellee.", "Morris York Williams Surtes & Barringer, L.L.P., by John F. Morris and Roberta S. Sperry, for defendants-appellants." ], "corrections": "", "head_matter": "PATRICIA BROOKS, Employee, Plaintiff-Appellee v. CAPSTAR CORPORATION, Employer, THE HARTFORD, Carrier, Defendants-Appellants\nNo. COA03-1064\n(Filed 18 January 2005)\n1. Workers\u2019 Compensation\u2014 vocational rehabilitation \u2014 compliance \u2014 disputed evidence\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding that plaintiff had complied with vocational rehabilitation services. Although there was evidence that plaintiff could have presented herself more favorably in job interviews, there was no evidence that she failed to keep appointments for interviews or that her behavior at the interviews was \u201cbalky.\u201d There was evidence that plaintiff was cooperative with her vocational case manager and did not intentionally sabotage defendants\u2019 efforts to find her employment.\n2. Workers\u2019 Compensation\u2014 disability \u2014 admitted claim \u2014 no finding\nThe Industrial Commission did not err in a workers\u2019 compensation case by not finding that plaintiff was disabled before awarding disability. Defendants had admitted plaintiff\u2019s claim; the issue was whether plaintiff complied with vocational rehabilitation.\n3. Workers\u2019 Compensation\u2014 expense of appeal \u2014 granted\nThe Court of Appeals granted plaintiff\u2019s request for expenses in the appeal of a workers\u2019 compensation case where defendants appealed a deputy commissioner\u2019s decision that temporary total disability be paid, the Commission affirmed the award of disability, defendants appealed to the Court of Appeals, and the Court of Appeals also affirmed. The requirements of N.C.G.S. \u00a7 97-88 are satisfied.\nJudge Tyson dissenting.\nAppeal by defendants from opinion and award entered 29 April 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 19 May 2004.\nDavid P. Parker, for plaintiff-appellee.\nMorris York Williams Surtes & Barringer, L.L.P., by John F. Morris and Roberta S. Sperry, for defendants-appellants." }, "file_name": "0023-01", "first_page_order": 53, "last_page_order": 66 }