{ "id": 8372005, "name": "MICKEY PLOTT, Employee, Plaintiff v. BOJANGLE'S RESTAURANTS, INC., Employer, and INSURANCE CO. OF THE STATE OF PENNSYLVANIA c/o AIG CLAIM SERVICES, Carrier, Defendants", "name_abbreviation": "Plott v. Bojangle's Restaurants, Inc.", "decision_date": "2007-01-02", "docket_number": "No. COA05-1690", "first_page": "61", "last_page": "68", "citations": [ { "type": "official", "cite": "181 N.C. App. 61" } ], "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": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "opinion_index": -1, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "625 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635055 ], "year": 2006, "pin_cites": [ { "page": "620", "parenthetical": "citing Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0613-01" ] }, { "cite": "355 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "160" }, { "page": "160" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170193 ], "year": 1987, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0589-01" ] }, { "cite": "235 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "859" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551082 ], "year": 1977, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0575-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "684" } ], "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": "398 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527213 ], "year": 1990, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0024-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "176 N.C. App. 229", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300969 ], "year": 2006, "pin_cites": [ { "page": "237", "parenthetical": "citing Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0229-01" ] }, { "cite": "345 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "317 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779801 ], "year": 1986, "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0179-01" ] }, { "cite": "489 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "447" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11795948 ], "year": 1997, "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0359-01" ] }, { "cite": "502 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "647", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11466981 ], "year": 1998, "pin_cites": [ { "page": "301", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0298-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2004, "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "625 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635055 ], "year": 2006, "pin_cites": [ { "page": "620", "parenthetical": "citing Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993" } ], "opinion_index": 1, "case_paths": [ "/se2d/625/0613-01" ] }, { "cite": "517 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "920", "parenthetical": "citing Kennedy v. Duke Univ. Med. Center, 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990)" } ], "opinion_index": 1 }, { "cite": "134 N.C. App. 428", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145160 ], "year": 1999, "pin_cites": [ { "page": "435", "parenthetical": "citing Kennedy v. Duke Univ. Med. Center, 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/134/0428-01" ] }, { "cite": "463 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 1 }, { "cite": "342 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796072 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/nc/342/0189-01" ] }, { "cite": "449 S.E.2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "52" } ], "opinion_index": 1 }, { "cite": "116 N.C. App. 598", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525122 ], "year": 1994, "pin_cites": [ { "page": "601" } ], "opinion_index": 1, "case_paths": [ "/nc-app/116/0598-01" ] }, { "cite": "487 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "749", "parenthetical": "quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986)" } ], "opinion_index": 1 }, { "cite": "346 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139324 ], "year": 1997, "pin_cites": [ { "page": "763", "parenthetical": "quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986)" } ], "opinion_index": 1, "case_paths": [ "/nc/346/0760-01" ] }, { "cite": "85 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "599" } ], "opinion_index": 1 }, { "cite": "241 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612018 ], "year": 1955, "pin_cites": [ { "page": "451" } ], "opinion_index": 1, "case_paths": [ "/nc/241/0448-01" ] }, { "cite": "235 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "859" } ], "opinion_index": 1 }, { "cite": "269 S.E.2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "300 N.C. 196", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560289, 8560267, 8560333, 8560306, 8560243 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc/300/0196-03", "/nc/300/0196-02", "/nc/300/0196-05", "/nc/300/0196-04", "/nc/300/0196-01" ] }, { "cite": "262 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "835" } ], "opinion_index": 1 }, { "cite": "45 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548032 ], "year": 1980, "pin_cites": [ { "page": "205" } ], "opinion_index": 1, "case_paths": [ "/nc-app/45/0197-01" ] }, { "cite": "355 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "160" } ], "opinion_index": 1 }, { "cite": "85 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170193 ], "year": 1987, "pin_cites": [ { "page": "592" } ], "opinion_index": 1, "case_paths": [ "/nc-app/85/0589-01" ] }, { "cite": "33 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551082 ], "year": 1977, "pin_cites": [ { "page": "579" } ], "opinion_index": 1, "case_paths": [ "/nc-app/33/0575-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "684", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "398 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "682" }, { "page": "682" } ], "opinion_index": 1 }, { "cite": "101 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527213 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "33" }, { "page": "33" } ], "opinion_index": 1, "case_paths": [ "/nc-app/101/0024-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457" } ], "opinion_index": 1 }, { "cite": "176 N.C. App. 229", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300969 ], "year": 2006, "pin_cites": [ { "page": "237", "parenthetical": "citing Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993" } ], "opinion_index": 1, "case_paths": [ "/nc-app/176/0229-01" ] }, { "cite": "345 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "378" } ], "opinion_index": 1 }, { "cite": "317 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779801 ], "year": 1986, "pin_cites": [ { "page": "185" } ], "opinion_index": 1, "case_paths": [ "/nc/317/0179-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "opinion_index": 1 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "pin_cites": [ { "page": "765" } ], "opinion_index": 1, "case_paths": [ "/nc-app/108/0762-01" ] } ], "analysis": { "cardinality": 732, "char_count": 18723, "ocr_confidence": 0.757, "pagerank": { "raw": 2.961645003348721e-07, "percentile": 0.8496161359214379 }, "sha256": "2692db0412cb400ce5a3c409079318b2b970a822e93ec2c0c0d54ef74334a422", "simhash": "1:23616d23f0abae0f", "word_count": 2942 }, "last_updated": "2023-07-14T22:19:54.793724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge TYSON dissents in a separate opinion." ], "parties": [ "MICKEY PLOTT, Employee, Plaintiff v. BOJANGLE\u2019S RESTAURANTS, INC., Employer, and INSURANCE CO. OF THE STATE OF PENNSYLVANIA c/o AIG CLAIM SERVICES, Carrier, Defendants" ], "opinions": [ { "text": "HUDSON, Judge.\nPlaintiff filed a workers\u2019 compensation claim alleging he sustained an injury by accident on 1 November 2002. Defendants denied the claim by Form 61 and plaintiff requested a hearing, which was held 18 November 2003. In June 2004, Deputy Commissioner Adrian A. Phillips entered an opinion and award finding that plaintiff sustained a compensable injury by accident and awarding compensation benefits beginning with the date of plaintiff\u2019s injury and \u201ccontinuing until Plaintiff returns to work or further order by the Commission.\u201d Defendants appealed to the Full Commission, which modified the opinion and award, concluding that although plaintiff sustained a compensable injury by accident, defendants had offered plaintiff suitable employment and that plaintiff was entitled to benefits only from the time of the injury until plaintiff was released to work in February 2003, because plaintiff failed to make reasonable efforts to find suitable employment since being released. Plaintiff appeals. We reverse and remand.\nThe evidence of record tends to show the following facts. On 1 November 2002, while working as a unit manager at Bojangle\u2019s Restaurant, plaintiff tripped over a hose in the front of the store, slipped and began to fall but was able to catch himself. Plaintiff felt pain in his back and reported the incident immediately to an on-site area director for defendant-employer. Plaintiff completed his shift and returned to work the following day. On 3 November 2002, plaintiff sought medical treatment from Primecare, who released plaintiff to work in a sedentary capacity beginning on 4 November 2002. Defendants contend that they offered to accommodate plaintiff\u2019s restrictions for about a month after his injury, and it is undisputed that plaintiff did not return to work.\nOn 12 November, plaintiff saw his primary care physician, Dr. Lon Morgan, who wrote plaintiff out of work from 12 November to 18 November. Plaintiff followed up with Dr. Morgan on 19 November 2002, at which time Dr. Morgan recommended plaintiff stay out of work another week. On 2 December 2002, plaintiff saw Dr. Christopher Bashore, an orthopedic surgeon, who released plaintiff to return to light duty work with restrictions. On 10 December 2002, Dr. William Brown, a neurosurgeon, examined plaintiff, prescribed epidural steroid injections, and wrote plaintiff out of work until that course of treatment was completed. Dr. Brown released plaintiff to work with significant permanent restrictions on 24 February 2003. At the hearing, plaintiff testified, and defendant-employer\u2019s human resources manager confirmed, that defendant could not accommodate the restrictions suggested by Dr. Brown during this period. On 13 June 2003, Dr. Brown wrote plaintiff out of work from 3 December 2002 to 3 August 2003, and on 6 August 2003, Dr. Brown wrote plaintiff out of work \u201cindefinitely.\u201d\nAt the hearing, plaintiff testified that he had not worked or sought work since November 2002 because of his pain and limitations. Plaintiff also testified that defendants had not offered vocational services. During his deposition, Dr. Brown testified that he believes that plaintiff could do some sort of work \u201cif enough restrictions are applied,\u201d and recommended that plaintiff \u201c[f]ind a different type of job.\u201d Plaintiff has a high school diploma and has taken a couple of courses in machine shop. Prior to beginning his employment with defendant in 1999, plaintiff had worked as a forklift operator, as a machine operator, at K-Mart in deli/food service, had managed a McDonald\u2019s restaurant, and had worked at a pizza restaurant.\nIn his brief, plaintiff argues that there was insufficient evidence to support the Commission\u2019s findings and conclusion that defendant offered him a light duty position that would accommodate his restrictions. Defendant argues that plaintiff was not entitled to benefits because of N.C. Gen. Stat. \u00a7 97-32 (2004), which states that \u201c[i]f 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 Id. Here, the Commission concluded that\n4. Plaintiff was offered sedentary employment at his preinjury wage by defendant but refused to attempt this employment and has not made reasonable efforts to find suitable employment since being released to return to work on 24 February 2003. Plaintiff is therefore not entitled to ongoing weekly disability benefits. N.C.G.S. 97-32.\nN.C. Gen. Stat. \u00a7 97-32 is entitled \u201cRefusal of injured employee to accept suitable employment as suspending compensation,\u201d and applies where an employer seeks to \u201cdiscontinue disability payments.\u201d Williams v. Pee Dee Electrical Membership Corp., 130 N.C. App. 298, 301, 502 S.E.2d 645, 647 (1998) (emphasis added). See also Smith v. Sealed Air Corp., 127 N.C. App. 359, 361, 489 S.E.2d 445, 447 (1997). However, it is undisputed that defendant had not accepted compensability for plaintiff\u2019s claim and that plaintiff had not been receiving any workers\u2019 compensation benefits. Since a suspension of compensation under section 97-32 is by definition temporary and a plaintiff can restore benefits by discontinuing the refusal, it is illogical to apply section 97-32 to a claim that has been denied and is in litigation. Here, even if plaintiff had accepted defendant\u2019s job, he was receiving no benefits which could have then resumed. We thus conclude that the Commission erroneously applied N.C. Gen. Stat. \u00a7 97-32 here.\nPlaintiff also argues that he proved his disability, but that the Commission failed to make findings as to his disability or .its extent. \u201cIn order to obtain compensation under the Workers\u2019 Compensation Act, the claimant has the burden of proving the existence of his disability and its extent.\u201d Hendrix v. Linn-Corrhier Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986). A plaintiff can meet this burden in four ways:\n(1) medical evidence that, as a consequence of the work-related injury, the employee is incapable of work in any employment; (2) evidence that the employee is capable of some work, but has been unsuccessful, after reasonable efforts, in obtaining employment; (3) evidence that the employee is capable of some work, but that it would be futile to seek employment because of preexisting conditions, such as age or lack of education; or (4) evidence that the employee has obtained employment at a wage less than that earned prior to the injury.\nSilva v. Lowe\u2019s Home Improvement, 176 N.C. App. 229, 237, 625 S.E.2d 613, 620 (2006) (citing Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)). If the claimant meets this initial burden, the burden shifts to the defendant to show that \u201csuitable jobs are available, [and] also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations.\u201d Kennedy v. Duke Univ. Medical Ctr., 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990).\n\u201cThe findings of the Industrial Commission are conclusive on appeal when supported by competent evidence even though there be evidence to support a contrary finding.\u201d Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). \u201cHowever, the Commission\u2019s legal conclusions are reviewable by the appellate courts.\u201d Id. \u201cWhile the Industrial Commission is not required to make specific findings of fact on every issue raised by the evidence, it is required to make findings on crucial facts upon which the right to compensation depends.\u201d Gaines v. L. D. Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 866, 859 (1977). \u201cWhere the findings are insufficient to enable the court to determine the rights of the parties, the case must be remanded to the Commission for proper findings of fact.\u201d Lawton v. County of Durham, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987).\nHere, the Commission made no findings regarding the nature of plaintiff\u2019s disability or its extent. The Commission found that doctors released plaintiff to work and that defendant-employer offered plaintiff \u201ca position within his restrictions,\u201d but that \u201cPlaintiff refused to attempt this position and subsequently failed to seek employment.\u201d However, the Commission made no detailed findings as to plaintiffs physical injuries and limitations or as to any of the Russell factors. Because the Commission\u2019s findings here are insufficient to enable us \u201cto determine the rights of the parties, the case must be remanded to the Commission for proper findings of fact.\u201d Lawton at 592, 355 S.E.2d at 160.\nReversed and remanded.\nJudge WYNN concurs.\nJudge TYSON dissents in a separate opinion.\nThe judges participated and submitted this opinion for filing prior to 1 January 2007.", "type": "majority", "author": "HUDSON, Judge." }, { "text": "TYSON, Judge,\ndissenting.\nThe majority\u2019s opinion \u201creverse[s] and remand[s]\u201d this case to the North Carolina Industrial Commission (the \u201cCommission\u201d) for further findings of fact. Where additional findings are required, the proper mandate from this Court is to simply remand for further findings. \u201cWhere the findings are insufficient to enable the court to determine the rights of the parties, the case must be remanded to the Commission for proper findings of fact.\u201d Lawton v. County of Durham, 85 N.C. App. 589, 592, 355 S.E.2d 158, 160 (1987). Under this Court\u2019s standard of review, we do not reweigh credibility determinations of the evidence before the Commission. Harrell v. Stevens & Co., 45 N.C. App. 197, 205, 262 S.E.2d 830, 835, disc. rev. denied, 300 N.C. 196, 269 S.E.2d 623 (1980). I vote to affirm the Commission\u2019s opinion and award and respectfully dissent.\nI. Standard of Review\n\u201cThe findings of the Industrial Commission are conclusive on appeal when supported by competent evidence even though there be evidence to support a contrary finding.\u201d Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982) (citations omitted). The Commission is not required to make specific findings of fact on every- issue raised by the evidence, only findings of crucial facts upon which the right to compensation depends are required. Gaines v. Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859 (1977). \u201cThe Commission is not required to make a finding as to each detail of the evidence or as to every inference or shade of meaning to be drawn therefrom.\u201d Guest v. Iron & Metal Co., 241 N.C. 448, 451, 85 S.E.2d 596, 599 (1955).\nII. Background\nOn 2 December 2002, Dr. Christopher Bayshore, an orthopedic specialist, released plaintiff to return to light duty work with restrictions. On 10 December 2002, Dr. William Brown (\u201cDr. Brown\u201d), a neurosurgeon, treated plaintiff, prescribed epidural steroid injections, and released plaintiff from work until treatment was completed. Dr. Brown released plaintiff to work with restrictions on 24 February 2003. Dr. Brown testified that he believed that he could work \u201cif enough restrictions [were] applied,\u201d and recommended plaintiff \u201c[f]ind a different type of job.\u201d\nPlaintiff admitted he had neither attempted to return to work nor sought any employment since November 2002 and blamed his lack of efforts on pain and limitations. Plaintiff achieved a high school diploma and has taken courses in machine shop. Plaintiff has experience as a forklift and machine operator. Prior to employment with Bojangle\u2019s in 1999, plaintiff gained .experience in food service and restaurant management. Plaintiff worked for K-Mart in deli/food service, at a pizza restaurant, and managed a McDonald\u2019s Restaurant.\nIn 1999, plaintiff obtained employment with defendant Bojangle\u2019s Restaurants, Inc. as an Assistant Unit Manager. His job duties included cooking, cleaning, overseeing employees, and maintaining positive customer service relations. Plaintiff testified that at the time he accepted the position with Bojangle\u2019s he had incurred a partial disability from a prior work related injury. Plaintiff testified he felt comfortable accepting employment with Bojangle\u2019s with restrictions and was able to perform his job for three and one-half years under such restrictions.\nThe Commission made determinations on plaintiff\u2019s credibility and entered findings of fact that he \u201chad not been forthcoming regarding defendant-employer\u2019s willingness to accommodate plaintiff\u2019s restrictions.\u201d The Commission also entered findings that \u201cplaintiff misinformed Dr. Morgan, mischaracterizing the incident of 1 November 2002.\u201d The Commission weighed the credibility of the evidence and entered findings of fact that Bojangle\u2019s offered plaintiff a position within his restrictions, which he refused to accept or attempt, and that subsequently failed to seek any employment.\nITT. Disability\n\u201c \u2018In order to obtain compensation under the Workers\u2019 Compensation Act, the claimant has the burden of proving the existence of his disability and its extent.\u2019 \u201d Saums v. Raleigh Community Hospital, 346 N.C. 760, 763, 487 S.E.2d 746, 749 (1997) (quoting Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986)). \u201c[T]he burden is on the employee to show that he is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment.\u201d Shaw v. United Parcel Service, 116 N.C. App. 598, 601, 449 S.E.2d 50, 52 (1994), aff\u2019d per curiam, 342 N.C. 189, 463 S.E.2d 78 (1995). A plaintiff may meet this burden in four ways:\n(1) medical evidence that, as a consequence of the work-related injury, the employee is incapable of work in any employment; (2) evidence that the employee is capable of some work, but has been unsuccessful, after reasonable efforts, in obtaining employment; (3) evidence that the employee is capable of some work, but that it would be futile to seek employment because of preexisting conditions, such as age or lack of education; or (4) evidence that the employee has obtained employment at a wage less than that earned prior to the injury.\nSilva v. Lowe\u2019s Home Improvement, 176 N.C. App. 229, 237, 625 S.E.2d 613, 620 (2006) (citing Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993). \u201cIf an employee presents substantial evid\u00e9nce he or she is incapable of earning wages, the employer must then come forward with evidence to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations.\u201d Barber v. Going West Transp. Inc., 134 N.C. App. 428, 435, 517 S.E.2d 914, 920 (1999) (citing Kennedy v. Duke Univ. Med. Center, 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990)).\nThe Commission entered findings of fact that plaintiff was partially disabled. The Commission\u2019s finding of fact numbered 9 states, \u201cDr. Brown testified that he would rate plaintiff with a 10% permanent partial disability to his back.\u201d Based upon this finding, the Commission concluded plaintiff was disabled and entered conclusion of law numbered 2 that \u201cplaintiff was temporarily totally disabled and entitled to receive temporary total disability compensation\u201d until his refusal to return to work.\nIV. Refusal to Work\nPlaintiff presented no evidence that he attempted to return to work or seek other gainful employment. Defendants argue pursuant to N.C. Gen. Stat. \u00a7 97-32 that the Commission correctly found plaintiff was not entitled to further benefits beyond the Commission\u2019s award because \u201c[i]f 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 Defendants presented competent evidence to show that \u201csuitable jobs [were] available, [and] also that the plaintiff [was] capable of getting one, taking into account both physical and vocational limitations.\u201d Kennedy, 101 N.C. App. at 33, 398 S.E.2d at 682. The Commission concluded:\n4. Plaintiff was offered sedentary employment at his preinjury-wage by defendant but refused to attempt this employment and has not made reasonable efforts to find suitable employment since being released to return to work on 24 February 2003. Plaintiff is therefore not entitled to ongoing weekly disability benefits. N.C.G.S. 97-32.\nCompetent and uncontradicted evidence in the record supports the Commission\u2019s conclusion of law numbered 4. The Commission did not err when it entered findings of fact and conclusions of law that plaintiff was released to return to work on 24 February 2003 and he was capable of, but refused, proffered work. The Commission did not shift the burden of proof to defendants after it had found plaintiff failed to prove he was totally disabled after 24 February 2003.\nV. Conclusion\nThe Commission\u2019s findings of fact are supported by competent and uncontradicted evidence in the record and are not insufficient as a matter of law. The Commission\u2019s findings of fact support its conclusions of law. I vote to affirm the Commission\u2019s opinion and award. I respectfully dissent.", "type": "dissent", "author": "TYSON, Judge," } ], "attorneys": [ "Raymond M. Marshall, for plaintiff-appellant.", "Robinson & Lawing, L.L.P., by Jolinda J. Babcock, for defendant-appellees." ], "corrections": "", "head_matter": "MICKEY PLOTT, Employee, Plaintiff v. BOJANGLE\u2019S RESTAURANTS, INC., Employer, and INSURANCE CO. OF THE STATE OF PENNSYLVANIA c/o AIG CLAIM SERVICES, Carrier, Defendants\nNo. COA05-1690\n(Filed 2 January 2007)\n1. Workers\u2019 Compensation\u2014 failure to seek suitable employment \u2014 benefits discontinued erroneously\nThe Industrial Commission erroneously applied N.C.G.S. \u00a7 97-32 to discontinue workers\u2019 compensation benefits after plaintiff was released to work but failed to make reasonable efforts to find suitable employment. Defendant had not accepted compensability for plaintiff\u2019s claims and plaintiff was not receiving benefits. It is illegal to apply N.C.G.S. \u00a7 97-32 to a claim that has been denied and is in litigation.\n2. Workers\u2019 Compensation\u2014 disability \u2014 findings\u2014insufficiency\nIndustrial Commission findings in a workers\u2019 compensation case were not sufficient for the Court of Appeals to determine the rights of the parties, and the case was remanded, where plaintiff contended that he had proven his disability, the Commission found that plaintiff had been released to work but had not sought employment, and the Commission made no detailed findings as to plaintiffs injuries or limitations or about any of the factors in Russell v. Lowes Product Distribution, 108 N.C. App. 762.\nJudge Tyson dissenting.\nAppeal by plaintiff from opinion and award entered by the North Carolina Industrial Commission on 8 July 2005. Heard in the Court of Appeals 22 August 2006..\nRaymond M. Marshall, for plaintiff-appellant.\nRobinson & Lawing, L.L.P., by Jolinda J. Babcock, for defendant-appellees." }, "file_name": "0061-01", "first_page_order": 93, "last_page_order": 100 }