{ "id": 4158131, "name": "JONATHAN ROSET-EREDIA, a/k/a LIBORIO VALDAVINOS-BARRIGA, Employee-Plaintiff v. F.W. DELLINGER, INC., Employer-Defendant, and NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, Carrier- Defendant", "name_abbreviation": "Roset-Eredia v. F.W. Dellinger, Inc.", "decision_date": "2008-05-20", "docket_number": "No. COA07-644", "first_page": "520", "last_page": "531", "citations": [ { "type": "official", "cite": "190 N.C. App. 520" } ], "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": "621 S.E.2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634303 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/621/0243-01" ] }, { "cite": "656 S.E.2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640357 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "613" }, { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0608-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "350 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "150", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 385", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358622 ], "year": 1986, "pin_cites": [ { "page": "387", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0385-01" ] }, { "cite": "174 N.C. App. 386", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352179 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/174/0386-01" ] }, { "cite": "480 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53858 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0494-01" ] }, { "cite": "389 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308491 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0326-01" ] }, { "cite": "468 S.E.2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "122 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915554 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/122/0083-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "246 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "746" }, { "page": "746" } ], "opinion_index": 0 }, { "cite": "295 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564809 ], "year": 1978, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0527-01" ] }, { "cite": "188 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156351 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/nc-app/188/0383-01" ] }, { "cite": "271 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "926", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522220 ], "year": 1980, "pin_cites": [ { "page": "470", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0463-01" ] }, { "cite": "586 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957782 ], "year": 2003, "pin_cites": [ { "page": "599-600" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0597-01" ] }, { "cite": "608 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "365" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470306 ], "year": 2005, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0469-01" ] }, { "cite": "581 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "753" } ], "opinion_index": 0 }, { "cite": "357 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491657 ], "year": 2003, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0228-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "560 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "874" }, { "page": "873" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 346", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9127862 ], "year": 2002, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0346-01" ] }, { "cite": "441 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1994, "pin_cites": [ { "page": "149" }, { "parenthetical": "citations omitted" }, { "page": "149", "parenthetical": "internal citations omitted" }, { "page": "149" }, { "page": "149" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527096 ], "year": 1994, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0069-01" ] }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "internal citations omitted" } ], "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", "year": 1982, "pin_cites": [ { "page": "683", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "317 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "686", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526283 ], "year": 1984, "pin_cites": [ { "page": "344", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0341-01" ] }, { "cite": "597 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "700", "parenthetical": "internal citations and quotations omitted" }, { "page": "700", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986640 ], "year": 2004, "pin_cites": [ { "page": "496", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0488-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(9)" }, { "page": "(9)" }, { "page": "(9)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1025, "char_count": 26719, "ocr_confidence": 0.73, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.34684454576309276 }, "sha256": "7c587018ac796544122d146b29463ae906ecdf71ce19330803f062c83767eb0c", "simhash": "1:04d66dcadcb7507d", "word_count": 4172 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and GEER concur." ], "parties": [ "JONATHAN ROSET-EREDIA, a/k/a LIBORIO VALDAVINOS-BARRIGA, Employee-Plaintiff v. F.W. DELLINGER, INC., Employer-Defendant, and NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, Carrier- Defendant" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhen plaintiff presented sufficient evidence of total disability and defendant-employer failed to rebut plaintiff\u2019s evidence, the Industrial Commission did not err in concluding that plaintiff is temporarily totally disabled.\nI. Factual Background and Procedural History\nJonathan Roset-Eredia, a/k/a Liborio Valdavinos-Barriga (plaintiff), was 35 years of age at the time of the hearing before the deputy commissioner, and was an undocumented worker from Mexico. He can read and write in Spanish, but is functionally illiterate in English. On 27 July 2001, plaintiff broke his right leg and ankle in the course and scope of his duties as an employee of F.W. Dellinger, Inc. (\u201cdefendant\u201d). Defendant and its insurance carrier North Carolina Insurance Guaranty Association (hereinafter collectively referred to as \u201cdefendants\u201d) accepted plaintiff\u2019s claim as compensable, began providing temporary total disability benefits on 2 August 2001, and filed a Form 60 in February 2002. Plaintiff has had nine orthopedic and plastic surgeries on his leg. In August 2004, plaintiff\u2019s treating physician, Dr. Hage, found plaintiff to be at maximum medical improvement, found a 35% permanent partial disability to the right leg, released him to work with permanent light-duty restrictions, and referred him to vocational rehabilitation. Plaintiffs physical restrictions included no climbing, no squatting, no standing for more than one hour at a time, and no lifting over 35 pounds.\nOn 15 July 2003 plaintiff\u2019s vocational rehabilitation began. Due to plaintiff\u2019s status as an undocumented alien, he was unable to complete an 1-9 form to document his legal work status. Angela Prenoveau (\u201cPrenoveau\u201d), a certified rehabilitation counselor at Southern Rehabilitation Network (\u201cSRN\u201d) performed two labor market surveys, dated 14 January 2004 and 5 October 2004, to determine what jobs were available in plaintiff\u2019s geographic area that plaintiff could do based on his work and education history, transferable skills, and physical restrictions. Prenoveau did not communicate with any of the potential employers listed in her labor market surveys to determine what the jobs required in terms of physical activities, reading, mathematical, and writing skills due to her understanding of the SRN policy regarding federal immigration law limitations on job placement activity for injured workers who declined to complete an 1-9 Employment Eligibility Verification form. Prenoveau understood the limitations to prohibit her from such communication with potential employers. However, Prenoveau testified that her former employer, the North Carolina State Division of Vocational Rehabilitation, did not construe federal immigration law to prohibit that type of job placement activity by rehabilitation counselors employed by the State. Likewise, Jane Coburn (\u201cCoburn\u201d), Prenoveau\u2019s co-worker, testified that she did not understand SRN policy to prohibit her communication with potential employers listed in a job market survey to determine what the jobs required in terms of physical activities.\nThe Full Commission filed an Opinion and Award on 2 February 2007, which held that as. a result of his work-related injuries, plaintiff was totally disabled from earning wages and ordered the payment of temporary total disability at the rate of $407.95 per week pending further orders of the Commission. The Opinion and Award further directed defendants to pay for plaintiff\u2019s ongoing medical treatment and vocational rehabilitation services. Prenoveau and SRN were ordered replaced as the vocational rehabilitation professionals with Stephen Carpenter. Defendants appeal. Plaintiff makes several cross-assignments of error.\nIT. Commission\u2019s Conclusion of Law\nIn their first argument, defendants contend that the Commission erred in concluding that plaintiff is totally disabled within the meaning of N.C. Gen. Stat. \u00a7 97-2(9). Defendants argue that the evidence does not support such a finding, and that the Commission\u2019s conclusion of law was in error. We disagree.\nThe standard of review of an Industrial Commission\u2019s Opinion and Award is\nwhether any competent evidence supports the Commission\u2019s findings of fact and whether [those] findings . . . support the Commission\u2019s conclusions of law. The Commission\u2019s findings of fact are conclusive on appeal when supported by such competent evidence, even though there [is] evidence that would support findings to the contrary.\nMcRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 700 (2004) (internal citations and quotations omitted). \u201cIf the finding of fact is essentially a conclusion of law ... it will be treated as a conclusion of law which is reviewable on appeal.\u201d Bowles Distributing Co. v. Pabst Brewing Co., 69 N.C. App. 341, 344, 317 S.E.2d 684, 686 (1984) (citations omitted). The Commission\u2019s conclusions of law are reviewed de novo. McRae at 496, 597 S.E.2d at 700 (citation omitted).\nN.C. Gen. Stat. \u00a7 97-2 of the Worker\u2019s Compensation Act defines \u201cdisability\u201d as \u201cincapacity 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) (2007). The employee bears the burden of proving \u201cboth the existence of his disability and its degree.\u201d Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982) (citation omitted). In order to meet this burden, the employee must show at least one of the following:\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;\n(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;\n(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\n(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. Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (internal citations omitted).\nOnce the employee presents substantial evidence that he or she is incapable of earning wages, \u201cthe employer has the burden of producing evidence to rebut the claimant\u2019s evidence.\u201d Burwell v. Winn-Dixie Raleigh, 114 N.C. App. 69, 73, 441 S.E.2d 145, 149 (1994). \u201cThis requires the employer to 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 Id. (citations omitted).\nAn employee is \u201ccapable of getting\u201d a job if \u201cthere exists a reasonable likelihood . . . that he would be hired if he diligently sought the job.\u201d It is not necessary . . . that the employer show that some employer has specifically offered plaintiff a job. If the employer produces evidence that there are suitable jobs available which the claimant is capable of getting, the claimant has the burden of producing 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.\nBurwell at 73-74, 441 S.E.2d at 149 (internal citations omitted). Whether the evidence of suitable jobs is sufficient to satisfy the employer\u2019s burden is a question of fact-for the Commission. Id.\nWhere the injured employee is an illegal alien, the employer must \u201cproduce sufficient evidence that there are suitable jobs plaintiff is capable of getting, \u2018but for\u2019 his illegal alien status.\u201d Gayton v. Gage Carolina Metals, Inc., 149 N.C. App. 346, 351, 560 S.E.2d 870, 874 (2002). Although federal law prohibits employers from hiring, recruiting or referring for a fee unauthorized aliens, 8 U.S.C. \u00a7 1324a(a) (1) (A) (1994), this Court has held that employers may \u201cperform labor market surveys to determine what jobs, if any, are available in the area where plaintiff resides that fit [the injured worker\u2019s] physical limitations.\u201d Gayton at 350, 560 S.E.2d at 873. We are bound by the holdings of this Court in Gayton. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).\nDefendants argue that plaintiff did not present sufficient evidence to satisfy his burden of proof under Russell, supra. Specifically, defendants contend that plaintiff did not present adequate evidence that seeking employment is futile because of preexisting conditions, such as his lack of education and English language deficiencies. The parties do not dispute, and the record establishes, that plaintiff is capable of doing some work, that he does not have a job, and that he has not made reasonable efforts to obtain employment. Therefore, the only question is whether plaintiff presented sufficient credible evidence that seeking employment was futile because of preexisting conditions.\nThe Commission found that:\n53. Plaintiffs vocational expert, Stephen Carpenter, was of the opinion that plaintiff has no transferable skills from his past . work history, that he can no longer perform his former job as a sheet rock finisher, that his work-related injuries and other vocational skills limit him from a full range of light work with a functional capacity of sedentary, and that it is unlikely that plaintiff can find suitable sedentary work, even at the unskilled level, as he has significant English language deficiencies. As a result of these marked physical and vocational limitations, it is Mr. Carpenter\u2019s opinion, and the Full Commission finds as fact, that plaintiff has not and will not be able to enter the competitive labor market until he becomes proficient in the English language and retrains pursuant to the recommendations of Mr. Carpenter.\nThere is evidence in the record that supports this finding. Carpenter testified in his deposition that plaintiff had no transferable skills. Carpenter\u2019s Vocational Report, dated 8 November 2004, states that plaintiff would probably not be able to find sedentary work due to his \u201csignificant English language deficiencies,\u201d as well as \u201cmarked physical and vocational limitations.\u201d Carpenter\u2019s report concluded that plaintiff would \u201cnot be able to enter the competitive labor market until he becomes proficient in the English language and retrains.\u201d\nDefendants assert that Carpenter\u2019s testimony is incompetent because he did not \u201cprovide his opinions to a reasonable degree of professional certainty.\u201d Although \u201cexpert opinion testimony [which] is based merely upon speculation and conjecture, . . . [] is not sufficiently reliable to qualify as competent evidence,\u201d Holley v. ACTS, Inc., 357 N.C. 228, 232, 581 S.E.2d 750, 753 (2003), the degree of an expert\u2019s certainty goes to the weight of his testimony, not its admissibility. Adams v. Metals USA, 168 N.C. App. 469, 483, 608 S.E.2d 357, 365 (2005). The Commission found Carpenter\u2019s testimony to be credible, and afforded it weight accordingly. In accordance with the applicable standard of review, we decline to reweigh the evidence. See Matthews v. City of Raleigh, 160 N.C. App. 597, 599-600, 586 S.E.2d 829, 833 (2003).\nThe Commission further found:\n56. Based upon the evidence of record concerning plaintiff\u2019s medical, vocational and literacy limitations, the Full Commission finds that plaintiff has met his burden of proof to show that the compensable injury that he suffered to his right foot and ankle on July 27, 2001 caused him and continues to cause him to be unable to earn the wages that he had been able earn [sic] before July 27, 2001 in the same or any other employment from July 27, 2001 through the present and continuing.\nWe first note that \u201c[although designated as a finding of fact, the character of this statement is essentially a conclusion of law and will be treated as such on appeal.\u201d Britt v. Britt, 49 N.C. App. 463, 470, 271 S.E.2d 921, 926 (1980) (citation omitted). We therefore review this finding de novo to determine whether it is supported by the Commission\u2019s findings.\nAlthough the Commission did not specifically state that it was futile for plaintiff to seek other employment, it found that plaintiff could not enter the labor market due to his limitations, and we hold \u2022 that finding of fact 53 is essentially a finding of futility. We further hold that finding of fact 56 is supported by finding of fact 53, that plaintiff was unable to earn the wages he was earning before his injury, and that this constituted a disability within the meaning of N.C. Gen. Stat. \u00a7 97-2(9).\nDefendants argue that evidence was presented that plaintiff was capable of some work and that there was no medical evidence supporting the futility prong, and contend that this evidence negates a finding by the Commission that it would be futile for the plaintiff to seek work. Defendants cite Carpenter\u2019s testimony that some of the jobs in the labor market surveys performed by Prenoveau could potentially be modified by the employer to accommodate a paraplegic worker, and that if a job description accommodated plaintiff\u2019s restrictions, plaintiff could perform the job.\nAs noted in Johnson v. City of Winston-Salem, 188 N.C. App. 383, 656 S.E.2d 608 (2008), the North Carolina Supreme Court has held that the relevant inquiry regarding a claimant\u2019s capacity to work \u201cis not whether all or some persons with plaintiff\u2019s degree of injury are capable of working and earning wages, but whether plaintiff herself has such capacity.\u201d Johnson at 391, 656 S.E.2d at 613 (quoting Little v. Food Serv., 295 N.C. 527, 531, 246 S.E.2d 743, 746 (1978)). In Little, the Court stated that a physician\u2019s testimony that \u201cthere are some gainful occupations that someone with [plaintiff\u2019s] degree of neurological problem could pursue,\u201d was \u201can oblique generality which sheds no light on plaintiff\u2019s capacity to earn wages.\u201d Little, at 531, 246 S.E.2d at 746. Carpenter\u2019s testimony that it is hypothetically possible that plaintiff could perform some sedentary work if the jobs were modified is a generality which sheds no light on plaintiff\u2019s capacity to earn wages. See id.; Johnson at 391, 656 S.E.2d at 613. Further, we note that Carpenter stated several times that \u201c[Realistically, these jobs are far beyond [plaintiff\u2019s] abilities and his functional capacity[.]\u201d\nOnce plaintiff presented substantial evidence that he was unable to earn wages, the burden shifted to defendants to show that suitable jobs were available to plaintiff and that he was capable of getting one of those jobs. See Burwell at 73, 441 S.E.2d at 149.\nThe Commission made the following pertinent findings of fact relating to defendants\u2019 evidence:\n50. In her completion of the October 2004 Labor Market Surveys, Ms. Prenoveau did not communicate in any way with any of the potential employers listed in the October 2004 Labor Market Survey to determine what the particular job(s) actually required in terms of physical activities, reading, mathematical, and writing skills . . .\n51. Despite her use of the Labor Market Survey procedures described, Ms. Prenoveau gave 'the opinion that plaintiff \u201cmight reasonably have expected\u201d to find one of the jobs listed in her Labor Market Surveys if he made reasonable efforts to search for the job, that those jobs \u201cmay be appropriate for him\u201d, that he \u201ccould have a reasonable chance of obtaining one of those jobs or some of those jobs if you made a reasonable effort to search for them\u201d, that \u201cthere was a reasonable chance that he would obtain employment within his restrictions in the area had he signed up with one of those [temporary] agencies\u201d, and that \u201ccontacting any of those [temporary] agencies could lead to employment for him\u201d, (emphasis in original)\nThe Commission found that Prenoveau\u2019s opinions\nwere either speculative (\u201ccould\u201d, \u201cmight\u201d, reasonable \u201cchance\u201d) or based in substantial part on labor market surveys which failed to include any specific information as to the actual physical, language and educational requirements of those jobs due to Ms. Prenoveau\u2019s failure to directly consult with any of the employers listed in those surveys about those physical, language and educational requirements[.]\nIn the instant case, the Commission stated that it \u201cgives little weight to these vocational opinions.\u201d As the Commission is the sole judge of the credibility of the witnesses and has rejected as not credible defendants\u2019 evidence that suitable jobs were available which plaintiff was capable of obtaining, we hold that defendants did not meet their burden of producing evidence to show that suitable jobs were available and that plaintiff was capable of getting one, taking into account plaintiff\u2019s physical and vocational limitations. See Burwell at 73, 441 S.E.2d at 149.\nThe facts of the instant case are distinguishable from those in an unpublished decision by this Court, Nicandro Sosa-Parada v. Custom Maintenance, Inc., et. al., No. COA06-89 (2006), cited by defendants. In Sosa-Parada, we held that the employer had met his burden of proof by completing a labor market survey which identified numerous jobs within the plaintiff\u2019s geographical area and physical restrictions which the plaintiff was capable of securing. A treating physician reviewed the labor market survey and approved four of the job descriptions as appropriate for plaintiff.\nIn the instant case, Prenoveau did not communicate with any of the employers listed in the labor market surveys to determine what the particular jobs required. Therefore, Prenoveau was unable to demonstrate that the jobs contained in those surveys were suitable for plaintiff or that he was capable of securing one of the jobs listed.\nBecause the Commission\u2019s findings of fact are supported by the evidence, and its conclusions of law are supported by the findings, we affirm the award of the Commission. This argument is. without merit.\nIII. Salaam Violation\nIn their next argument, defendants contend that the Commission erred in concluding that a Salaam violation occurred. We disagree.\nPursuant to Rule VII.D of the North Carolina Industrial Commission Rules for Rehabilitation Professionals, promulgated pursuant to N.C. Gen. Stat. \u00a7 97-25.5 and clarified by the decision in Salaam v. N.C. DOT, 122 N.C. App. 83, 468 S.E.2d 536 (1996), rehabilitation professionals are prohibited from communicating with a treating physician without the prior consent of the injured worker\u2019s attorney.\nIn the instant case, the Full Commission found that Prenoveau \u201ccontacted Dr. Hage directly without the consent of plaintiff in an effort to convince Dr. Hage to order a functional capacity evaluation.\u201d The Commission concluded that:\n5. The actions of Angela Prenoveau in contacting Dr. Hage were in violation of the principles set out in Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990), and Salaam v. N.C. Dept. of Transp., 122 N.C. App. 83, 468 S.E.2d 536 (1996), disc. review improvidently allowed, 345 N.C. 494, 480 S.E.2d 51 (1997). See Mayfield v. Parker Hannifen, 174 N.C. App. 386, 621 S.E.2d 243 (2005).\nThe Commission\u2019s award provided that:\n10. Based upon the Salaam violation . . . the Full Commission exercises its discretion to require defendant-carrier to replace both Angela Prenoveau and Southern Rehabilitation Network, Inc. (\u201cSRN\u201d) as the vocational rehabilitation professionals assigned to this case with Stephen Carpenter . ..\nThe progress report from SRN cited by plaintiff as showing a violation of Salaam establishes that it was Beth Ezzell, not Prenoveau, who attempted to contact or contacted Dr. Hage\u2019s staff in April 2005.\nAlthough the evidence in the record does not support the Commission\u2019s finding of fact in this matter, and the Commission\u2019s conclusion of law is likewise unsupported, \u201c[t]o warrant reversal, the Industrial Commission\u2019s error must be material and prejudicial.\u201d Taylor v. Pardee Hospital, 83 N.C. App. 385, 387, 350 S.E.2d 148, 150 (1986) (citation omitted).\nOur review of the transcripts, records, and briefs supports the Commission\u2019s finding that a Salaam violation occurred. A report by Beth Ezzell states that she repeatedly communicated with the receptionists and assistant of Dr. Hage to inquire whether Dr. Hage \u201cfeels the Functional Capacity Evaluation is necessary to determine the IW\u2019s limitations and abilities\u201d pursuant to a request from the adjuster.\nDefendants have made no argument as to how the Commission\u2019s finding regarding the identity of the particular SRN employee is material in light of the Commission\u2019s conclusion that a Salaam violation occurred, and its decision to replace SRN with Stephen Carpenter. This argument is without merit.\nIV. Functional Capacity Evaluation\nIn their next argument, defendants contend that the Commission erred in failing to address the issue of whether an updated Functional Capacity Evaluation (\u201cFCE\u201d) was warranted. We disagree.\nIn paragraph 4 of its award, the Commission stated that\n4. Defendants shall authorize and pay for the additional vocational and medical assistance, evaluation(s), and/or treatment that are described in Paragraphs 1-6 of Mr. Carpenter\u2019s report dated November 8, 2004 in order to effect a cure, provide relief, and/or lessen the period of plaintiff\u2019s disability.\nThe first paragraph of the proposed recommendations in Carpenter\u2019s report was that plaintiff obtain a\n[consultation with the attending medical specialist to determine the status of the osteomyelitis and other impairments affecting medical stability. Consultation with the physician should include outline of a treatment plan to cure the chronic osteomyelitis and to improve functional capacity so that the client can eventually engage in a full range of competitive work activity.\nThis recommendation addresses the issue of the necessity of a new FCE and makes clear that, in Carpenter\u2019s opinion, an FCE was unwarranted and that plaintiff should instead consult with a medical specialist regarding his physical abilities. Further, during the deposition of Dr. Hage, he was asked about the usefulness of an FCE in determining plaintiff\u2019s restrictions. Dr. Hage responded that:\nI felt comfortable, given the restrictions that I gave, based on my exam of the patient and my interpretation of the x-rays, and my talking to Mr. Roset-Eredia about his limitations, and what he can or can\u2019t do. And I didn\u2019t feel like, at that point, a functional capacity exam was necessary . . .\nWe hold that, by its adoption of Carpenter\u2019s recommendation, which is corroborated by Dr. Hage\u2019s opinion, the Commission addressed the issue of the necessity of an FCE. This argument is without merit.\nV. Plaintiff\u2019s Cross-Appeal\nPlaintiff presents four cross-assignments of error. Plaintiff acknowledges, and we agree, that these arguments are moot due to our affirming the award of the Full Commission. The only argument in plaintiff/cross-appellant\u2019s brief not rendered moot is plaintiff\u2019s request for attorney\u2019s fees for this appeal.\nWe note that a request to this Court for an award of fees pursuant to N.C. Gen. Stat. \u00a7 97-88 was not properly raised as a cross-assignment of error. N.C.R. App. P. 10(d) (2008).\nN.C. Gen. Stat. \u00a7 97-88 provides that:\nIf the Industrial Commission at a hearing on review or any court before which any proceedings are brought on appeal under this Article, shall find that such hearing or proceedings were brought by the insurer and the Commission or court by its decision orders the insurer to make, or to continue payments of benefits ... to the injured employee, the Commission or court may further order that the cost to the injured employee of such hearing or proceedings including therein reasonable attorney\u2019s fee to be determined by the Commission shall be paid by the insurer as a part of the bill of costs.\nN.C. Gen. Stat. \u00a7 97-88 (2007). Even assuming plaintiff had properly moved for expenses and fees under N.C. Gen. Stat. \u00a7 97-88, in our discretion, we decline to issue such an order.\nAFFIRMED.\nJudges McCULLOUGH and GEER concur.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "The Law Offices of Robert J. Willis, by Robert J. Willis, for plaintiff-appellee.", "Brooks, Stevens & Pope, P.A., by Robert S. Welch and James A. Barnes TV, for defendants-appellants.", "Carol L. Brooke, for North Carolina Justice Center, Amicus Curiae." ], "corrections": "", "head_matter": "JONATHAN ROSET-EREDIA, a/k/a LIBORIO VALDAVINOS-BARRIGA, Employee-Plaintiff v. F.W. DELLINGER, INC., Employer-Defendant, and NORTH CAROLINA INSURANCE GUARANTY ASSOCIATION, Carrier- Defendant\nNo. COA07-644\n(Filed 20 May 2008)\n1. Workers\u2019 Compensation\u2014 disability \u2014 limited English skills \u2014 illegal alien \u2014 ability to find suitable employment\nThe Industrial Commission did not err by concluding that plaintiff is temporarily totally disabled within the meaning of N.C.G.S. \u00a7 97-2(9) where the issue was plaintiffs ability to get a suitable job because his English skills were limited and he is an illegal alien. The Commission found that testimony from plaintiffs vocational expert was credible, and the evidence supported what was essentially a finding of futility. The burden then shifted to defendants, which they did not meet as the Commission rejected as not credible defendants\u2019 evidence that suitable jobs were available that plaintiff was capable of obtaining.\n2. Workers\u2019 Compensation\u2014 contact with treating physician \u2014 identity of employee not material\nThe Industrial Commission did not err in a workers\u2019 compensation claim by concluding that a Salaam violation had occurred in that plaintiff\u2019s treating physician was contacted by a rehabilitation employee. The Commission\u2019s erroneous finding regarding the identity of the particular employee was not material.\n3. Workers\u2019 Compensation\u2014 updated FCE \u2014 adoption of recommendation of vocational expert and doctor\nThe Industrial Commission did not err by failing to address the issue of whether an updated Functional Capacity Evaluation was warranted, as defendants contended. The Commission ad- ' dressed the necessity of an FCE by its adoption of the recommendation of plaintiffs vocational expert, as corroborated by plaintiffs treating physician, that plaintiff instead consult a medical specialist.\n4. Workers\u2019 Compensation\u2014 attorney fees for appeal \u2014 not properly raised \u2014 not granted\nThe Court of Appeals did not order attorney fees for plaintiff in the appeal from a workers\u2019 compensation case where the matter was not properly raised as a cross-assignment of error and, even had it been, the Court would have declined to issue the order.\nAppeal by defendants from an Opinion and Award entered 2 February 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 28 November 2007.\nThe Law Offices of Robert J. Willis, by Robert J. Willis, for plaintiff-appellee.\nBrooks, Stevens & Pope, P.A., by Robert S. Welch and James A. Barnes TV, for defendants-appellants.\nCarol L. Brooke, for North Carolina Justice Center, Amicus Curiae." }, "file_name": "0520-01", "first_page_order": 552, "last_page_order": 563 }