{ "id": 4155886, "name": "HARRY B. GRAHAM, Employee, Plaintiff v. MASONRY REINFORCING CORP. OF AMERICA, Employer, and ATLANTIC MUTUAL INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Graham v. Masonry Reinforcing Corp. of America", "decision_date": "2008-02-19", "docket_number": "No. COA07-372", "first_page": "755", "last_page": "764", "citations": [ { "type": "official", "cite": "188 N.C. App. 755" } ], "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": "648 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639160 ], "year": 2007, "pin_cites": [ { "page": "921", "parenthetical": "internal quotations and ellipses omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0917-01" ] }, { "cite": "648 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639048, 12639049, 12639047 ], "year": 2007, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0211-02", "/se2d/648/0211-03", "/se2d/648/0211-01" ] }, { "cite": "645 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638636 ], "year": 2007, "pin_cites": [ { "page": "89", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0083-01" ] }, { "cite": "644 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638312 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/644/0232-01" ] }, { "cite": "637 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637245 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "254", "parenthetical": "internal citations and internal quotations omitted" }, { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0251-01" ] }, { "cite": "235 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1977, "pin_cites": [ { "page": "859", "parenthetical": "ellipses omitted" }, { "page": "859" }, { "page": "859" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551082 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "579", "parenthetical": "ellipses omitted" }, { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0575-01" ] }, { "cite": "70 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "709" } ], "opinion_index": 0 }, { "cite": "235 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626215 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0602-01" ] }, { "cite": "49 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166064 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0360-01" ] }, { "cite": "218 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "27 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552883 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/27/0286-01" ] }, { "cite": "472 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "401" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912671 ], "year": 1996, "pin_cites": [ { "page": "233-34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0228-01" ] }, { "cite": "185 N.C. App. 677", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212228 ], "year": 2007, "pin_cites": [ { "page": "683", "parenthetical": "internal quotations and ellipses omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0677-01" ] }, { "cite": "342 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "805" } ], "opinion_index": 0 }, { "cite": "316 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704100 ], "year": 1986, "pin_cites": [ { "page": "437" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0426-01" ] }, { "cite": "361 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3745792, 3739073, 3742562, 3742250, 3744530, 3745567 ], "year": 2007, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0426-06", "/nc/361/0426-03", "/nc/361/0426-01", "/nc/361/0426-02", "/nc/361/0426-04", "/nc/361/0426-05" ] }, { "cite": "182 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8175128 ], "year": 2007, "pin_cites": [ { "page": "654", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0646-01" ] }, { "cite": "608 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2004, "pin_cites": [ { "page": "557-58" }, { "page": "558-59", "parenthetical": "emphasis added" }, { "page": "559", "parenthetical": "emphasis added" }, { "page": "558-59" }, { "page": "558" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411363 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "354-55" }, { "page": "356-67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0354-01" ] }, { "cite": "463 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "noting that without a work-related injury, an employee would not have been \"unemployed and suffered wage loss\"" } ], "opinion_index": 0 }, { "cite": "342 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796106, 796012, 796081, 795953, 796029 ], "year": 1995, "pin_cites": [ { "parenthetical": "noting that without a work-related injury, an employee would not have been \"unemployed and suffered wage loss\"" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0191-02", "/nc/342/0191-03", "/nc/342/0191-05", "/nc/342/0191-01", "/nc/342/0191-04" ] }, { "cite": "459 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "35", "parenthetical": "noting that without a work-related injury, an employee would not have been \"unemployed and suffered wage loss\"" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 491", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916104 ], "year": 1995, "pin_cites": [ { "page": "497", "parenthetical": "noting that without a work-related injury, an employee would not have been \"unemployed and suffered wage loss\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0491-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "internal citations omitted" }, { "page": "457" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "year": 1993, "pin_cites": [ { "page": "765", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "683", "parenthetical": "internal citations omitted" }, { "page": "683" }, { "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", "parenthetical": "internal citations omitted" } ], "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.", "weight": 3, "year": 2001, "pin_cites": [ { "page": "(9)" }, { "page": "(19)" } ], "opinion_index": 0 }, { "cite": "361 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3741607, 3737130, 3738894, 3739255, 3742617, 3740890, 3745628 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0356-04", "/nc/361/0356-06", "/nc/361/0356-03", "/nc/361/0356-05", "/nc/361/0356-07", "/nc/361/0356-02", "/nc/361/0356-01" ] }, { "cite": "180 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8242544 ], "year": 2006, "pin_cites": [ { "page": "395", "parenthetical": "internal citations and internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0392-01" ] } ], "analysis": { "cardinality": 876, "char_count": 23184, "ocr_confidence": 0.746, "pagerank": { "raw": 1.1082080835720258e-07, "percentile": 0.5700687569043601 }, "sha256": "457c0ddab2dca5988f75a077a7379b93c8fcf377bc8dea4b6caecf8cde0aa545", "simhash": "1:3182dbea248ee86f", "word_count": 3689 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and JACKSON concur." ], "parties": [ "HARRY B. GRAHAM, Employee, Plaintiff v. MASONRY REINFORCING CORP. OF AMERICA, Employer, and ATLANTIC MUTUAL INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "Stroud, Judge.\nDefendant appeals opinion and award by the Full Commission. Defendant contends the Full Commission erred by concluding plaintiff was disabled after 17 December 2001 and finding plaintiffs termination was not due to an economic downturn and plaintiffs misconduct, and by concluding plaintiffs back condition was compensable. For the following reasons, we affirm in part and remand in part.\nI. Background\nIn May of 2000, plaintiff began working for defendant Masonry Reinforcing Corp. of America (\u201cMasonry\u201d) as a cost accountant. Plaintiffs job \u201crequired him to prepare cost accounting reports for upper management^] ... go out into the manufacturing facilities and observe production, take inventories, [and] obtain data from machinesf.]\u201d On 6 February 2001, plaintiff tripped over a forklift barrier. Plaintiff lost his balance and fell against a golf cart striking his lower back and left hip. Plaintiff had immediate intense pain in his left hip, buttock, leg, and lower back, but he \u201cwalked it off and returned to work.\u201d Plaintiff reported this incident to his supervisor who indicated that he would fill out an accident report. Plaintiff went to the Veterans\u2019 Administration Hospital and was diagnosed with avascular necrosis in the left hip. Plaintiff did not fill out a written accident report for his injury until 6 July 2001 because of his supervisor\u2019s earlier indication that he would be filing a report.\nOn 31 August 2001, plaintiff stepped into a pool of spilled fluid and slipped, \u201ccausing his right leg to go out from under him.\u201d \u201c[T]he incident exacerbated his pre-existing hip, leg and back condition\u201d stemming from his February injury. On 26 September 2001, Masonry\u2019s chief financial officer, Mark McClure (\u201cMcClure\u201d), decided to terminate plaintiff. McClure claimed the termination was because of economics and poor job performance. Masonry paid plaintiff through 15 October 2001, and on 16 October 2006 plaintiff had \u201chip replacement surgery due to his avascular necrosis[.]\u201d After surgery, \u201c[p]laintiff was restricted to lifting no more than 10 pounds, no bending, no stooping,\u201d and to changing positions every 30 minutes. On 17 December 2001, approximately eight weeks after surgery, plaintiff began to look for a new job and continued to until October of 2004 when he began receiving Social Security Disability benefits.\nPlaintiff filed Form 18, \u201cNotice of Accident to Employer and Claim of Employee, Representative, or Dependant\u201d, with the Industrial Commission for each of his two accidents. Masonry filed Form 19, \u201cEmployer\u2019s Report of Employee\u2019s Injury or Occupational Disease to the Industrial Commission\u201d, denying the claim because \u201cthe employee was not injured within the course and scope of his employment.\u201d Plaintiff filed Form 33, requesting that his claim be assigned for a hearing. Plaintiff requested payment for compensation for days missed, medical expenses/treatment, permanent partial disability, scars, post operative care, and rehabilitation expenses. Masonry responded to plaintiff\u2019s request for a hearing with Form 33R and denied compensability for the claim because it was not an injury by accident and it did not arise out of and in the course of employment.\nOn or about 10 February 2006, Deputy Commissioner Phillip A. Holmes ordered defendants to pay plaintiff, inter alia, $588.00 per week from 16 October 2001 through 17 December 2001 in a lump sum and \u201cfor all medical treatment received by [p]laintiff for his left hip as a result of his compensable injuries\u201d in February and August of 2001 \u201cfor so long as said treatment effects a cure, gives relief or lessens [p]laintiff\u2019s period of disability.\u201d Plaintiff appealed to the Full Commission.\nOn 31 October 2006, the Full Commission by Commissioner Bernadine S. Ballance awarded plaintiff, inter alia, $588.00 per week from 16 October 2001 through 31 October 2004 in a lump sum and \u201cfor all medical expenses incurred or to be incurred in the future by [p]laintiff for his left hip and back for so long as such treatment is reasonably required to effect a cure, provide relief and lessen his disability [.]\u201d Defendants appeal.\nDefendants present two issues before this Court: (1) Whether the Industrial Commission erred in finding plaintiff disabled after 17 December 2001 and in awarding him temporary total indemnity benefits until 31 October 2004, and (2) whether the Industrial Commission erred in finding plaintiffs back condition compensable and ordering defendants to pay for back treatment.\nII. Standard of Review\nOur review of the Commission\u2019s opinion and award is limited to determining whether competent evidence of record supports the findings of fact and whether the findings of fact, in turn, support the conclusions of law. If there is any competent evidence supporting the Commission\u2019s findings of fact, those findings will not be disturbed on appeal despite evidence to the contrary. However, the Commission\u2019s conclusions of law are reviewed de novo.\nRose v. City of Rocky Mount, 180 N.C. App. 392, 395, 637 S.E.2d 251, 254 (2006) (internal citations and internal quotations omitted), disc. rev. denied, 361 N.C. 356, 644 S.E.2d 232 (2007).\nIII. Proof of Disability and Reason for Termination\nDefendants first argue that the Industrial Commission erred in finding that plaintiff was disabled after 17 December 2001 and in awarding temporary total indemnity benefits until 31 October 2004. Specifically, defendants contend (1) plaintiff did not prove his work-related disability for any time after 17 December 2001, and (2) plaintiff\u2019s termination was due to an economic downturn and plaintiff\u2019s personal misconduct; thus plaintiff is not entitled to further indemnity benefits beyond 17 December 2001.\nA. Proof of Disability\n\u201cThe term \u2018disability\u2019 means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u201d N.C. Gen. Stat. \u00a7 97-2(9) (2001). Our Supreme Court has stated that\nin order to support a conclusion of disability, the Commission must find: (1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual\u2019s incapacity to earn was caused by plaintiff\u2019s injury. In workers\u2019 compensation cases, a claimant ordinarily has the burden of proving both the existence of his disability and its degree.\nHilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982) (internal citations omitted). This Court has stated a claimant may prove the first two prongs of Hilliard through\n(1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment, ... (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment, ... (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment, ... or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.\nRussell v. Lowes Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (internal citations omitted).\nThe Industrial Commission found as fact that plaintiff\nlooked for suitable employment on his own by submitting more than one hundred applications for jobs he felt he was qualified and able to perform. He sought jobs through the Employment Security Commission, newspapers and other leads. The job search reshlted in three interviews and no offers of employment.\nThe Industrial Commission concluded that\n[a]s of December 17, 2001, [p]laintiff was ready to begin an effort to return to work and he commenced a reasonable job search effort until he began receiving Social Security Disability benefits \u2018the last of October 2004,\u2019 and stopped looking for employment. Without vocational assistance from [defendants, [p]laintiff looked for suitable employment on his own by submitting more than one hundred applications for jobs he felt he was qualified and able to perform. He sought jobs through the Employment Security Commission, newspapers and other leads. The job search resulted in three interviews and no offers of employment. Although highly educated, [plaintiff\u2019s advanced age; physical restrictions due to his injury; and health condition, including severe chronic pain syndrome, hypertension, disc disease, arthritis, depressive disorder and a number of other conditions diminished his employment opportunities. Therefore, [pjlaintiff has proven disability under the second prong of Russell.\nBased upon competent evidence, including plaintiff\u2019s testimony and documentation of the numerous jobs plaintiff had inquired into after his hip replacement surgery until his Social Security Disability began, the Industrial Commission found that plaintiff had proven his disability by showing that \u201che is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment^]\u201d Russell at 765, 425 S.E.2d at 457; see Hilliard at 595, 290 S.E.2d at 683. From these facts the Industrial Commission could properly conclude that plaintiff had proven his disability as the evidence presented by plaintiff about his job search showed that he was incapable of earning the same wages he had earned in the same or other employment. See Hilliard at 595, 290 S.E.2d at 683. The evidence, including plaintiff\u2019s testimony, also showed that plaintiff\u2019s incapacity to earn was.causally related to his physical restrictions from the hip injury. Cf. Fletcher v. Dana Corp., 119 N.C. App. 491, 497, 459 S.E.2d 31, 35, disc. rev. denied, 342 N.C. 191, 463 S.E.2d 235 (1995) (noting that without a work-related injury, an employee would not have been \u201cunemployed and suffered wage loss\u201d).\nB. Economic Downturn\nDefendants rely on Segovia v. J.L. Powell & Co., where a plaintiff-employee had compensable injuries and was subsequently laid off. 167 N.C. App. 354, 354-55, 608 S.E.2d 557, 557-58 (2004). The Industrial Commission found as fact that\n[h]ad it not been for the reduction in business associated with the company-wide layoffs due to the economic downturn, [plaintiff] would have returned to work for defendant-employer .... The greater weight of the evidence establishes that the plaintiff\u2019s inability to earn wages since March 2001 was due to the layoff and plaintiff\u2019s lack of interest in returning to work, and not due to any disability associated with plaintiff\u2019s injury.\nId. at 356, 608 S.E.2d at 558-59 (emphasis added). This Court further stated:\nThese findings support the full Commission\u2019s conclusion that plaintiff\u2019s earning capacity is not currently affected by the injuries he suffered to his back and ear. Therefore, we conclude that the full Commission did not err in concluding that plaintiff is not currently disabled as a result of his injuries and thus, in denying plaintiff further compensation.\nId. at 357, 608 S.E.2d at 559 (emphasis added).\nThis Court [citing Segovia] has [also] held that the Full Commission did not err in denying an employee benefits under the Workers\u2019 Compensation Act where the employee was physically able to perform his former job and the employee\u2019s inability to earn wages was due to a layoff resulting from a downturn in the economy and the employee\u2019s lack of interest in returning to work.\nEudy v. Michelin North America, Inc., 182 N.C. App. 646, 654, 645 S.E.2d 83, 89, disc. rev. denied, 361 N.C. 426, 648 S.E.2d 211 (2007) (emphasis added) (citing Segovia, 167 N.C. App. 354, 356-67, 608 S.E.2d 557, 558-59).\nHowever, the facts of Segovia are quite different from this case as in Segovia the Industrial Commission found that plaintiff was \u201cphysically capable of performing his regular job with defendant-employer . . . except for two very short periods].]\u201d See Segovia at 356, 608 S.E.2d at 558. In the case at bar we have already concluded that the Industrial Commission could properly and did find that plaintiff was disabled for some time after his termination. As this Court stated in Britt v. Gator Wood, Inc.,\nDefendants have focused on the wrong issue. While the immediate cause of the loss of plaintiff\u2019s wages . . . may have been the lay-off, that fact does not preclude a finding of disability. As Peoples v. Cone Mills Corp., 316 N.C. 426, 437, 342 S.E.2d 798, 805 (1986) explained, an injured employee\u2019s earning capacity is determined by the employee\u2019s own ability to compete in the labor market. Thus, the fact that plaintiff was laid off does not preclude a finding of total disability if, because of plaintiff\u2019s injury, he was incapable of obtaining a job in the competitive labor market.\nBritt v. Gator Wood, Inc., 185 N.C. App. 677, 683, 648 S.E.2d 917, 921 (2007) (internal quotations and ellipses omitted). Thus, even assuming arguendo that plaintiff was terminated for an economic downturn, this would not preclude a finding that plaintiff was disabled and thus eligible to receive indemnity benefits during the term of his disability. See id. at 685, 648 S.E.2d at 921.\nC. Misconduct\n[W]e hold that where an employee, who has sustained a compensable injury and has been provided light duty or rehabilitative employment, is terminated from such employment for misconduct or other fault on the part of the employee, such termination does not automatically constitute a constructive refusal to accept employment so as to bar the employee from receiving benefits for temporary partial or total disability. Rather, the test is whether the employee\u2019s loss of, or diminution in, wages is attributable to the wrongful act resulting in loss of employment, in which case benefits will be barred, or whether such loss or diminution in earning capacity is due to the employee\u2019s work-related disability, in which case the employee will be entitled to benefits for such disability. Therefore, in such cases the employer must first show that the employee was terminated for misconduct or fault, unrelated to the compensable injury, for which a nondisabled employee would ordinarily have been terminated.\nSeagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 233-34, 472 S.E.2d 397, 401 (1996).\nHere the Industrial Commission found as fact that \u201c[t]he greater weight of the evidence establishes that [p]laintiff\u2019s job performance was satisfactory and the Full Commission gives little weight to testimony indicating that [p]laintiff was terminated for poor job performance.\u201d The evidence showed that plaintiff had received positive feedback from his supervisor regarding his work performance and that Masonry was aware of his worker\u2019s compensation claims at the time of his termination; this supports the Industrial Commission\u2019s finding of fact that plaintiff\u2019s \u201cjob performance was satisfactory\u201d which in turn supports the conclusion of law that \u201c[pjlaintiffs termination was not due to misconduct.\u201d See Rose at 395, 637 S.E.2d at 254.\nWe therefore find that the Industrial Commission did not err in finding that plaintiff was entitled to indemnity benefits after 17 December 2001.\nIV. Plaintiffs Back Condition\nLastly, defendants contend the Industrial Commission erred in determining that plaintiff\u2019s back condition was compensable and ordering defendants to pay for back treatment because plaintiff did not prove \u201chis back condition is causally related to the hip injury or that it definitively arose from the two incidents in questionf.j\u201d Defendants argue that the Full Commission\u2019s finding of fact regarding plaintiff\u2019s back was not enough to support its conclusions of law regarding defendants paying for the treatment of plaintiff\u2019s back.\nThe Full Commission found as fact that\n[i]n addition to his avascular necrosis, the Full Commission finds that [pjlaintiff also suffered back pain as a result of his fall on February 6, 2001. The physicians treating [pjlaintiff have not recommended any invasive treatment for the back injury and the narcotic pain medication that he takes from the hip pain appears to address the back pain as well.\nThe Full Commission concluded as law that\n[pjlaintiff has proven by the greater weight of the evidence that as a result of his accidents on February 6, 2001 and on August 31, 2001, he developed disabling avascular necrosis of the left hip and back pain. N.C. Gen. Stat. \u00a7 97-2.\n[and that] [pjlaintiff is entitled to have [djefendants pay for medical treatment for his injury to his left hip and back, for so long as such treatment is reasonably required to effect a cure, provide relief and lessen his disability. N.C. Gen. Stat. \u00a7\u00a7 97-2(19), 97-25.\nHowever,\n[wjhile the commission is not required to make findings as to each fact presented by the evidence, it is required to make specific findings with respect to crucial facts upon which the question of plaintiff\u2019s right to compensation depends. Smith v. Construction Co., 27 N.C. App. 286, 218 S.E.2d 717 (1975). If the findings of fact of the commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the proceeding must be remanded to the commission for proper findings of fact. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797 (1948). As stated in Thomason v. Cab Co., 235 N.C. 602, 605-[0]6, 70 S.E.2d 706, 709 (1952):\n\u2018The findings of fact of the Industrial Commission should tell the full story of the event giving rise to the claim for compensation. They must be sufficiently positive and specific to enable the court on appeal to determine whether they are supported by the evidence and whether the law has been properly applied to them. It is likewise plain that the court cannot decide whether the conclusions of law and the decision of the Industrial Commission rightly recognize and effectively enforce the rights of the parties upon the matters in controversy if the Industrial Commission fails to make specific findings as to each material fact upon which those rights depend.\u2019\nGaines v. Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859 (1977) (ellipses omitted).\nIn the present case, the Full Commission has not only failed to make findings of fact as to the causation of plaintiff\u2019s back pain, but it. has also failed to make a finding as to the medical condition of plaintiff\u2019s back. In order for a reviewing court to determine whether plaintiff\u2019s back treatment is compensable we must know whether there is evidence that the medical condition causing plaintiff\u2019s back pain was caused by his workplace injury; this cannot be done without a finding that plaintiff actually has a back condition or any other medical condition that would create pain in his back. Therefore, we remand this case for further findings as to the actual condition which created plaintiff\u2019s back pain and whether that condition is causally linked to plaintiff\u2019s workplace injury. See id.\nV. Conclusion\nAs to the determination that plaintiff did prove his disability and his termination was not due to an economic downturn or misconduct, we affirm. As to the determination that plaintiff\u2019s back pain was compensable we remand with instructions for the Full Commission to make further findings of fact and conclusions of law.\nAFFIRMED IN PART AND REMANDED IN PART.\nJudges TYSON and JACKSON concur.\n. Defendants also argue it was error for the Industrial Commission not to make a specific finding of fact and conclusion of law as to the economic downturn as the Industrial Commission \u201cis required to make specific findings with respect to crucial facts upon which the question of plaintiff\u2019s right to compensation depends.\u201d Gaines v. Swain & Son, Inc., 33 N.C. App. 575, 579, 235 S.E.2d 856, 859 (1977). However, as we have previously stated, the economic downturn is not a \u201ccrucial fact\u201d in light of a proper finding that plaintiff was disabled. See Gaines at 579, 235 S.E.2d at 859.", "type": "majority", "author": "Stroud, Judge." } ], "attorneys": [ "Bollinger & Piemonte, PC by Bobby L. Bollinger, Jr. for plaintiff-appellee.", "Hedrick, Eatman, Gardner & Kincheloe, L.L.P. by Shannon P. Metcalf and M. Duane Jones for defendant-appellants." ], "corrections": "", "head_matter": "HARRY B. GRAHAM, Employee, Plaintiff v. MASONRY REINFORCING CORP. OF AMERICA, Employer, and ATLANTIC MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. COA07-372\n(Filed 19 February 2008)\n1. Workers\u2019 Compensation\u2014 disability \u2014 economic downturn \u2014 misconduct\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that plaintiff employee was disabled after 17 December 2001 and in awarding temporary total indemnity benefits until 31 October 2004 even though defendants contend plaintiff failed to prove work-related disability for any time after 17 December 2001, and that plaintiff\u2019s termination was allegedly due to an economic downturn or personal misconduct, because: (1) the Commission could conclude plaintiff had proven his disability based on plaintiff\u2019s testimony and documentation of the numerous jobs plaintiff had inquired into after his hip replacement surgery until his Social Security Disability began, thus showing he was incapable of earning the same wages he had earned in the same or other employment; (2) the evidence including plaintiff\u2019s testimony also showed plaintiff\u2019s incapacity to earn was causally related to his physical restrictions from the hip injury; (3) even assuming arguendo that plaintiff was terminated for an economic downturn, this fact would not preclude a finding that plaintiff was disabled and thus eligible to receive indemnity benefits during the term of his disability; and (4) the Commission\u2019s finding that plaintiff\u2019s termination was riot due to poor job performance was supported by the evidence that showed plaintiff had received positive feedback from his supervisor regarding his work performance and that his company was aware of his workers\u2019 compensation claims at the time of his termination.\n2. Workers\u2019 Compensation\u2014 sufficiency of findings of fact\u2014 causation \u2014 back injury\nThe Industrial Commission erred in a workers\u2019 compensation case by finding that plaintiff employee\u2019s back condition was compensable and by ordering defendants to pay for back treatment, and the case is remanded for further findings as to the actual condition which created plaintiff\u2019s back pain and whether that condition is causally linked to plaintiffs workplace injury, because: (1) the Commission not only failed to make findings of fact as to the causation of plaintiffs back pain, but also failed to make a finding as to the medical condition of plaintiffs back; and (2) in order for a reviewing court to determine whether plaintiffs back treatment is compensable, it must be known whether there is evidence that the medical condition causing plaintiffs back pain was caused by his workplace injury.\nAppeal by defendants from the Opinion and Award entered 31 October 2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 October 2007.\nBollinger & Piemonte, PC by Bobby L. Bollinger, Jr. for plaintiff-appellee.\nHedrick, Eatman, Gardner & Kincheloe, L.L.P. by Shannon P. Metcalf and M. Duane Jones for defendant-appellants." }, "file_name": "0755-01", "first_page_order": 785, "last_page_order": 794 }