{ "id": 4177356, "name": "MELVIN McLAUGHLIN, Employee, Plaintiff v. STAFFING SOLUTIONS, Employer, GALLAGHER BASSETT SERVICES, Third-Party Administrator, Defendants", "name_abbreviation": "McLaughlin v. Staffing Solutions", "decision_date": "2010-08-03", "docket_number": "No. COA09-739", "first_page": "137", "last_page": "152", "citations": [ { "type": "official", "cite": "206 N.C. App. 137" } ], "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": "123 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912671 ], "opinion_index": -1, "case_paths": [ "/nc-app/123/0228-01" ] }, { "cite": "621 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634290 ], "year": 2005, "pin_cites": [ { "page": "183", "parenthetical": "\"Findings of fact to which [an appellant] has not assigned error and argued in his brief are conclusively established on appeal.\" (citations and quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0180-01" ] }, { "cite": "668 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642282 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "914-15" }, { "page": "915" } ], "opinion_index": 0, "case_paths": [ "/se2d/668/0909-01" ] }, { "cite": "663 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641569 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "918", "parenthetical": "citation omitted" }, { "page": "918" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0914-01" ] }, { "cite": "470 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "354", "parenthetical": "awarding plaintiff attorney's fees pursuant to N.C. Gen. Stat. \u00a7 97-88 when defendant had appealed the Full Commission's order directing payment of additional benefits to plaintiff, even though plaintiff had previously appealed \"within the Commission\"" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918005 ], "year": 1996, "pin_cites": [ { "page": "477", "parenthetical": "awarding plaintiff attorney's fees pursuant to N.C. Gen. Stat. \u00a7 97-88 when defendant had appealed the Full Commission's order directing payment of additional benefits to plaintiff, even though plaintiff had previously appealed \"within the Commission\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0473-01" ] }, { "cite": "606 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "701", "parenthetical": "quoting Brown v. Public Works Comm., 122 N.C. App. 473, 477, 470 S.E.2d 352, 354 (1996" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 23", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468017 ], "year": 2005, "pin_cites": [ { "page": "30", "parenthetical": "quoting Brown v. Public Works Comm., 122 N.C. App. 473, 477, 470 S.E.2d 352, 354 (1996" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0023-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2004, "opinion_index": 0 }, { "cite": "174 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352365 ], "year": 2005, "pin_cites": [ { "page": "474", "parenthetical": "\"Findings of fact to which [an appellant] has not assigned error and argued in his brief are conclusively established on appeal.\" (citations and quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0469-01" ] }, { "cite": "342 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "804", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "316 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704100 ], "year": 1986, "pin_cites": [ { "page": "434-35", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0426-01" ] }, { "cite": "677 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151256 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/nc/363/0369-01" ] }, { "cite": "194 N.C. App. 27", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4163301 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0027-01" ] }, { "cite": "585 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491744, 491866, 491659, 491910 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0460-04", "/nc/357/0460-01", "/nc/357/0460-02", "/nc/357/0460-03" ] }, { "cite": "579 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185540 ], "year": 2003, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0168-01" ] }, { "cite": "191 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159017 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "728", "parenthetical": "citation omitted" }, { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0724-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-25", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "425 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "page": "457", "parenthetical": "citations and quotation marks omitted" }, { "page": "457" } ], "opinion_index": 0 }, { "cite": "597 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2004, "pin_cites": [ { "page": "699" }, { "parenthetical": "emphasis added" }, { "page": "699" }, { "page": "699" } ], "opinion_index": 0 }, { "cite": "358 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986640 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "493" }, { "page": "493" }, { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0488-01" ] }, { "cite": "472 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1996, "pin_cites": [ { "page": "401" }, { "page": "401" }, { "page": "401" }, { "page": "401" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(6)" }, { "page": "(9)" }, { "page": "(9)" }, { "page": "(9)" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 762", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525626 ], "weight": 3, "pin_cites": [ { "page": "765", "parenthetical": "citations and quotation marks omitted" }, { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0762-01" ] }, { "cite": "123 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912671 ], "weight": 5, "pin_cites": [ { "page": "233-34" }, { "page": "234" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0228-01" ] } ], "analysis": { "cardinality": 1111, "char_count": 36075, "ocr_confidence": 0.744, "pagerank": { "raw": 7.181100842601303e-08, "percentile": 0.4299269957437673 }, "sha256": "8515b0f6d7e67218521949d9fa43a65267bcc9b12c2368f9a971ddb2b242ee5e", "simhash": "1:9f477c4b7ab158c6", "word_count": 5663 }, "last_updated": "2023-07-14T18:24:03.194595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and BEASLEY concur." ], "parties": [ "MELVIN McLAUGHLIN, Employee, Plaintiff v. STAFFING SOLUTIONS, Employer, GALLAGHER BASSETT SERVICES, Third-Party Administrator, Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nStaffing Solutions and Gallagher Bassett Services (collectively referred to as \u201cdefendants\u201d) appeal an opinion and award by the Full Commission arguing that the Commission erred in awarding temporary total disability compensation to Melvin McLaughlin (\u201cplaintiff\u2019). For the following reasons, we affirm the Full Commission\u2019s award and remand for a determination of the appropriate amount of costs to be taxed to defendants.\nI.Background\nThe Full Commission (\u201cCommission\u201d), by Chairman Pamela T. Young, made the following uncontested findings of fact:\n1. Plaintiff is 58 years old. Plaintiff has a high school education and two years of courses at Ohio State University in mechanical engineering. Plaintiff explained that he took non-accredited courses in mechanical engineering to improve his mechanical ability in relation to a maintenance job he had at the time with American Can. He also served in the United States Marine Corp for two years and was honorably discharged.\n2. In the last several years, plaintiff has held a variety of jobs. He was a plant manager for two manufacturing companies that produced plastic bottles, for approximately four years each. He then did some temporary assignment work over the next few years, including a four-year stint with Defendant-Employer. Through Defendant-Employer, Plaintiff was assigned to work as a shipping and receiving clerk for Nomacork, a company that produces corks for wine bottles. Plaintiff also testified that he worked for some time in the past as a truck dispatcher.\n3. Plaintiff sustained an admittedly compensable injury by accident on September 30, 2004. While on the Nomacork premises, another employee drove a forklift into a stack of crates and a crate weighing approximately 700 pounds fell onto Plaintiff\u2019s left side. Plaintiff was pinned by the crate, and it had to be moved off of him.\n4. After the crate was moved, Plaintiff was inspected by his coworkers and it was determined that he was already getting black and blue. Accordingly, Plaintiff was taken by ambulance to Wake Med, where he was diagnosed with multiple injuries including a fractured scapula, fractured ribs, a punctured lung, a punctured spleen, and a bruise on his neck. Plaintiff testified that he stayed in the ICU for more than a week.\n5. After his discharge, Plaintiffs treatment focused primarily on his left shoulder. Plaintiff came under the care of Dr. Nelms, his family doctor, who referred him to Dr. Robert C. Martin, an orthopedic surgeon.\n6. Dr. Martin first saw Plaintiff on May 2, 2005. By the time Plaintiff presented to Dr. Martin, many of his initial injuries had already healed. Plaintiff had one remaining rib fracture, which Dr. Martin indicated would heal over time. He also had some residual neck pain, for which no specific treatment was recommended.\n7. The primary focus of Dr. Martin\u2019s treatment was the left shoulder. Plaintiff reported continued pain, stiffness, and decreased function. Dr. Martin obtained an MRI, which revealed a partial rotator cuff tear, significant impingement, and AC joint arthropathy. Dr. Martin recommended surgical repair.\n8. Plaintiff was able to return to work at Nomacork filling out bills of laden [sic] and scanning crates with a handheld bar code device for a short time before his surgery.\n9. Dr. Martin performed surgery on July 25, 2005, specifically an arthroscopic subacromial decompression, distal clavulectomy, and debridement of a glenoid labral tear. Following surgery, Dr. Martin recommended a course of rehabilitative therapy. Plaintiff was kept out of work until February 22, 2006, when Dr. Martin allowed him to return to work for four hours a day with certain light duty restrictions.\n10. Plaintiff sought work after his release, but was only able to find a couple of odd jobs. He did those jobs until they ended, then he called Defendant-Employer seeking further employment. Defendant-Employer offered him a position in its office in Raleigh.\n11. Plaintiff worked for Defendant-Employer for four hours per day through March 16, 2006. On the morning of March 16, 2006, Mr. Silvestre Gonzalez, Defendant-Employer\u2019s area manager, was informed by another employee that Plaintiff was giving off a strong odor of alcohol. Mr. Gonzalez proceeded to Plaintiff\u2019s workstation, where he himself noticed the odor.\n12. Mr. Gonzalez confronted Plaintiff, in the presence of at least one witness, regarding the odor of alcohol. Plaintiff responded that the assertion was ludicrous, and that he had not been drinking. Mr. Gonzalez asked him to take a breathalyzer, consistent with company policy. Plaintiff refused to take a breathalyzer and left the premises.\n13. According to Mr. Gonzalez\u2019s testimony, it is contrary to Defendant-Employer\u2019s company policy for an employee to have consumed, or be under the influence, of alcohol during work hours. It is also against company policy to refuse a breathalyzer when requested. A violation of either of those policies is grounds for immediate termination of any employee. Plaintiff would have been informed of these procedures when he began his employment. Mr. Gonzalez testified that if he himself went into work the next day and refused a breathalyzer test upon request, he would be fired.\n14. Plaintiff denied having consumed alcohol on the day in question. Plaintiff did not dispute that he was offered a breathalyzer test on March 16, 2006, and acknowledged he did not take the test. Plaintiff acknowledged that drinking or being under the influence of alcohol on the job would be grounds for termination. He also acknowledged that refusing a breathalyzer was grounds for termination.\n15. The evidence establishes and the Full Commission finds that Plaintiff was terminated for violation of company policy for refusing to take a breathalyzer, that such a refusal would have resulted in the termination of a nondisabled employee, and that Plaintiff\u2019s termination was unrelated to Plaintiff\u2019s compensable injuries and claim. Accordingly, Plaintiff\u2019s termination is deemed to constitute a constructive refusal of suitable employment.\n16. Plaintiff has been out of work since his March 16, 2006 termination. Following his termination, Plaintiff sought employment through the VA representative in Wilson, North Carolina and through the Employment Security Commission. They provided him several leads, which he pursued, but he was unable to find work for only four hours per day. Plaintiff also testified that he met with a vocational rehabilitation counselor provided by Defendant for several weeks, but was again unable to locate a job that would let him work only four hours per day.\n17. Per Dr. Martin\u2019s testimony, by April 6, 2006, Plaintiff had reached maximum medical improvement. Plaintiff underwent an FCE at Dr. Martin\u2019s direction, which indicated that Plaintiff met the standards for sedentary work (may exert up to 10 pounds of force occasionally and negligible amount of force frequently), with the exception that he could not lift any weight from waist to shoulder or shoulder to overhead with his left arm. On April 24, 2006, Dr. Martin released Plaintiff to return to work within the restrictions outlined by the FCE. Dr. Martin released Plaintiff from his care and assigned a 28% permanent partial disability rating to the left upper extremity.\n18. Plaintiff underwent a second opinion evaluation by Dr. Kevin Speer, an orthopedic surgeon, on October 4, 2006. Dr. Speer testified that he found on exam that Plaintiff had a very stiff shoulder and he could only elevate his arm actively to about chin level, which was estimated at a 50% loss in range of motion. He had extensive bursitis in his shoulder and his shoulder muscle exhibited atrophy compared to the opposite side. Dr. Speer agreed that Plaintiff was at maximum medical improvement regarding his left shoulder and assigned a 35% permanent disability rating.\n19. With respect to plaintiff\u2019s ability to work, Dr. Speer testified that Plaintiff had a very dysfunctional and painful shoulder and it was doubtful that vocational efforts or retraining would be successful even with \u2018the most remedial shoulder-sparing work efforts.\u2019 Dr. Speer testified that, within a reasonable degree of medical certainty, plaintiff would more likely than not need to be totally disabled due to his shoulder injury.\n20. Plaintiff testified that he has not looked for work since Dr. Speer told him he was disabled.\n21. Defendant has continued to pay Plaintiff temporary partial disability benefits since his March 2006 termination.\n23. The opinions of both Drs. Martin and Speer are found to be credible. With respect to the period after plaintiff reached MMI in April 2006, the totality of the medical and other evidence establishes and the Full Commission finds that plaintiff was and is severely limited by his left shoulder injury and has been totally disabled since his termination by Defendant-Employer.\n24. Plaintiff testified that he requires assistance from his wife in order to dress and perform certain personal grooming activities. Plaintiff testified that his wife does most of the yard work and that he is not able to help her with household cleaning. Plaintiff acknowledged that he does some yard work, including cutting the grass with a riding lawnmower, using a weed eater, and light raking. Plaintiff\u2019s wife testified that Plaintiff is not able to help with yard work and housework as much as he did before his injury. Plaintiff\u2019s wife testified that Plaintiff is able to load clothes into the washer and load the dishwasher, but he cannot move clothes to the dryer or put away dishes that are in upper cabinets. Plaintiff\u2019s wife is employed outside the home during the day.\n25. No medical evidence was submitted showing that any physician recommended attendant care or home assistance for Plaintiff.\n26. The Full Commission finds that Plaintiff\u2019s wife is not entitled to compensation for attendant care for Plaintiff.\nBased on its findings, the Commission concluded:\n1. Plaintiff sustained a compensable injury by accident on or about September 30, 2004, resulting in multiple injuries, including to his left shoulder. N.C. Gen. Stat. \u00a7 97-2(6).\n2. Plaintiff constructively refused suitable employment provided by Defendant-Employer on March 16, 2006. Plaintiff\u2019s termination was for cause, and similar behavior by a non-disabled employee would have resulted in that employee\u2019s termination as well. Plaintiff\u2019s termination was not related to his compensable injury. However, Plaintiff was totally disabled following his termination based on his failure to obtain other employment due to his injury-related work restrictions. Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996); McRae v. Toastmaster, Inc., 358 N.C. 488, 597 S.E.2d 695 (2004); N.C. Gen. Stat; \u00a7 97-32.\n3. Based on the medical and other evidence, Plaintiff is and has been temporarily totally disabled since his termination by Defendant-Employer. Plaintiff is entitled to receive ongoing temporary total disability compensation beginning March 17, 2006. Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993); N.C. Gen. Stat. \u00a7 97-2(9).\n4. Plaintiff is entitled to have Defendant pay for medical treatment related to his compensable injury. N.C. Gen. Stat. \u00a7 97-25.\n5. Plaintiff\u2019s wife is not entitled to compensation for attendant or home care for Plaintiff. N.C. Gen. Stat. \u00a7 97-25.\nDefendants were ordered to pay: (1) \u201ctemporary total disability compensation in the amount of $471.00 per week beginning March 17, 2006 and continuing until further order of the Commission^]\u201d (2) \u201call medical expenses incurred or to be incurred as a result of Plaintiff\u2019s compensable injury by accident on September 30, 2004, for so long as such evaluations, examinations, and treatments may reasonably be required to effect a cure, provide relief, or tend to lessen the period of disability, when bills for the same have been approved in accordance with the provisions of the Act[;]\u201d and (3) \u201creasonable attorney\u2019s fee of twenty-five (25%) of the compensation due Plaintiff under paragraph 1 of this Award[.]\u201d On 25 March 2009, defendants filed notice of appeal.\nII. Standard of Review\nThis Court has previously stated that\nreview of a decision of the Industrial Commission is limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law. The findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings. This Court reviews the Commission\u2019s conclusions of law de novo.\nEgen v. Excalibur Resort Prof\u2019l, 191 N.C. App. 724, 728, 663 S.E.2d 914, 918 (2008) (citation omitted).\nIII. Constructive Refusal and Continuation of Benefits\nDefendants first argue that competent evidence in the record does not support the following portion of the Commission\u2019s finding of fact No. 22: \u201cthe evidence is sufficient to establish that between his termin\u00e1tion and reaching MMI in April 2006, plaintiff was unable to find suitable employment within his part-time and other restrictions related to his injury.\u201d Defendants argue that \u201cthere is no evidence regarding plaintiff\u2019s activities\u201d following his 16 March 2006 termination and reaching maximum medical improvement on 6 April 2006.\nPlaintiff\u2019s testimony at the hearing before Deputy Commissioner Ronnie E. Rowell on 17 September 2007 provided competent evidence for finding of fact No. 22:\nPlaintiff\u2019s Counsel: Okay. Now when you-after being terminated by Staffing Solutions, did you seek employment after that?\nPlaintiff: Yes, I did.\nQ: And do you recall where you went and how many jobs, perhaps, that you applied for?\nA: I don\u2019t remember.\nQ: Were you ever offered any vocational assistance?\nA: Yes, by the Workman\u2019s Comp [sic] rep.\nQ: All right. And were you able to find employment?\nA: No, sir.\nQ: Do you know why you were unable to find employment?\nA: (Unintelligible) four hours and a lot of companies] don\u2019t want you to work just four hours.\nThe Commission\u2019s finding of fact No. 9, uncontested by defendants, states that because of plaintiff\u2019s injuries, he was restricted to working only four hours a day. Plaintiff testified that following his termination, he attempted unsuccessfully to find work, but he could not find employment that would accommodate his restriction to working only four hours a day. Therefore, there is competent evidence in the record to support finding of fact No. 22. Defendants do not bring forth any argument against the Commission\u2019s remaining findings of fact, so they are binding on appeal. Johnson v. Herbie\u2019s Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118, disc. review denied, 357 N.C. 460, 585 S.E.2d 760 (2003).\nDefendants next contend that the Commission erroneously concluded that plaintiff was eligible for continuing temporary total disability compensation under the test established in Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996), and adopted by McRae v. Toastmaster, Inc., 358 N.C. 488, 597 S.E.2d 695 (2004). Defendants contend that the Commission correctly concluded that plaintiff had constructively refused employment, but the Commission erroneously concluded that plaintiff was totally disabled from work. Defendants contend that this conclusion was based on contradictory testimony from Drs. Martin and Speer, and there was no evidence regarding plaintiff\u2019s job search during the period of time following his termination. Therefore, there was no evidence supporting plaintiff\u2019s total disability and the Commission erred as a matter of law \u201cin failing to suspend plaintiff\u2019s compensation in light of its finding that plaintiff constructively refused an offer of suitable employment!)]\u201d\nIn Seagraves, this Court held that when an employee who had sustained a compensable injury and was \u201cprovided light duty or rehabilitative employment [was] terminated from such employment for misconduct or other fault on the part of the employee, such termination [did] not automatically constitute a constructive refusal to accept employment so as to bar the employee from receiving benefits for temporary partial or total disability.\u201d 123 N.C. App. at 233-34, 472 S.E.2d at 401. Instead,\nthe 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.\nId. at 234, 472 S.E.2d at 401. \u201cThus, under the Seagraves\u2019 test, to bar payment of benefits, an employer must demonstrate initially that: (1) the employee was terminated for misconduct; (2) the same misconduct would have resulted in the termination of a nondisabled employee; and (3) the termination was unrelated to the employee\u2019s compensable injury.\u201d McRae, 358 N.C. at 493, 597 S.E.2d at 699.\nAn employer\u2019s successful demonstration of such evidence is \u2018deemed to constitute a constructive refusal\u2019 by the employee to perform suitable work, a circumstance that would bar benefits for lost earnings, \u2018unless the employee is then able to show that his or her inability to find or hold other employment... at a wage comparable to that earned prior to the injury[] is due to the work-related disability.\u2019 Id. (emphasis added). In other words, a showing of employee misconduct is not dispositive on the issue of benefits if the employee can demonstrate that his or her subsequent failure to perform suitable work or find comparable work was the direct result of the employee\u2019s work-related injuries. Under Seagraves, the employee would be entitled to benefits if he or she can demonstrate that work-related injuries, and not the circumstances of the employee\u2019s termination, prevented the employee from either performing alternative duties or finding comparable employment opportunities.\nId. at 493-94, 597 S.E.2d at 699 (quoting Seagraves, 123 N.C. App. at 234, 472 S.E.2d at 401.).\nContrary to defendants\u2019 argument, the focus of the second part of the Seagraves test is not whether there was a finding that plaintiff was \u201ctotally disabled\u201d but whether plaintiff\u2019s subsequent failure to perform or find comparable work was the direct result of plaintiff\u2019s \u201cwork-related injuries[.]\u201d See id. The Commission\u2019s conclusion of law No. 3, that plaintiff\u2019s \u201cfailure to obtain other employment [was] due to his injury-related work restrictions[,]\u201d was supported by the Commission\u2019s findings of fact 9, 16, and 22. The Commission\u2019s finding of fact No. 9, uncontested by defendants, states that following plaintiff\u2019s work-related shoulder injury, Dr. Martin \u201callowed him to return to work for four hours a day with certain duty restrictions.\u201d The Commission\u2019s finding of fact 16, uncontested by defendants, states that following plaintiff\u2019s termination on 16 March 2006, he sought employment through a VA representative, the Employment Security Commission, and the vocational rehabilitation counselor provided by defendants but was unable to locate a job that would let him work only four hours a day. As stated above, the Commission found in finding of fact 22 that following plaintiff\u2019s termination, he \u201cwas unable to find suitable employment within the part-time and other restrictions related to his injury.\u201d These findings support the Commission\u2019s conclusion that plaintiff was unable to find other employment due to his work-related shoulder injury, and plaintiff was entitled to temporary total disability compensation. Therefore, we are not persuaded by defendants\u2019 contentions.\nDefendants also argue that the test in Seagraves is applicable only when \u201cthe claimant\u2019s injury played a role in the termination.\u201d Defendants contend that \u201cthe vast majority of cases on this subject,\u201d including Castaneda v. Int\u2019l Leg Wear Group, 194 N.C. App. 27, 668 S.E.2d 909 (2008), affirmed per curiam, 363 N.C. 369, 677 S.E.2d 454 (2009), are \u201ceasily distinguishable from the instant scenario . . . because in each of those cases . . . the claimant\u2019s injury played a role in the termination.\u201d (emphasis added.) In Castaneda, after her injury by accident, the\nplaintiff was in severe pain. She called work and stayed out that day. [The next day], when plaintiff returned to work, she asked to be sent to a doctor. Defendant had plaintiff go to the office where she was requested to sign a \u2018written verbal\u2019 warning about work performance. Plaintiff believed she would be terminated if she signed the form, but did initial her name to the form. Defendant was not satisfied and terminated plaintiff. Plaintiff had no prior misconduct or warnings.\n194 N.C. App. at 34, 668 S.E.2d at 914-15. The Commission found that \u201cthere is insufficient evidence to support a finding that plaintiff was terminated for misconduct.\u201d Id. at 35, 668 S.E.2d at 915. However, this Court held that \u201c[e]ven if the Full Commission erred in determining that plaintiff was not terminated for misconduct, if she showed that her inability to find other employment at a wage comparable to the wage she earned prior to the injury is due to a work-related disability, then her payments are not barred. Seagraves, supra.\u201d Id.\nThus, defendants\u2019 argument misinterprets the third factor identified by Seagraves and McRae: that the plaintiff must show that \u201cthe termination was unrelated to the employee\u2019s compensable injury.\u201d McRae, 358 N.C. at 493, 597 S.E.2d at 699. (emphasis added). If \u201cthe claimant\u2019s injury played a role in the termination\u201d as argued by defendants, the termination would be related to the employee\u2019s compensable injury and the Seagraves test would be inapplicable. See id. However, here, the Commission\u2019s conclusion No. 2 stated that plaintiff had \u201cconstructively refused employment[,]\u201d as plaintiff\u2019s \u201ctermination was for cause, and similar behavior by a non-disabled employee would have resulted in that employee\u2019s termination as well[,]\u201d and plaintiff\u2019s \u201ctermination was not related to his compensable injury.\u201d As stated above, defendants agree that \u201cthe Commission correctly concluded that plaintiff had constructively refused employment\u201d because his termination was clearly not related to- his compensable injury. Therefore, we are not persuaded by defendants\u2019 argument.\nThe fact that defendants proved that plaintiff had constructively refused employment did not end the inquiry, as the burden then shifts back to the plaintiff to \u201cdemonstrate that his or her subsequent failure to perform suitable work or find comparable work was the direct result of the employee\u2019s work-related injuries.\u201d McRae, 358 N.C. at 494, 594 S.E.2d at 699. An employee is not entitled to benefits after his termination for cause unrelated to his injury \u201c \u2018unless the employee is then able to show that his or her inability to find or hold other employment ... at a wage comparable to that earned prior to the injury[] is due to the work-related disability.\u2019 \u201d Id. (quoting Seagraves, 123 N.C. App. at 234, 472 S.E.2d at 401.). In other words, a showing of employee misconduct is not dispositive on the issue of benefits \u201cif the employee can demonstrate that his or her subsequent failure to perform suitable work or find comparable work was the direct result of the employee\u2019s work-related injuries.\u201d Id. Thus, defendants\u2019 argument that plaintiff\u2019s termination must be related to his compensable injury is without merit.\nIV. Plaintiff\u2019s Total Disability\nDefendants next contend that the Commission erred \u201cas a matter of law in finding that employee-plaintiff was disabled within the meaning of N.C. Gen. Stat. \u00a7 97-2(9)\u201d because plaintiff \u201creturned to work and earned wages prior to his termination, and in light of evidence from his treating physician that plaintiff was capable of working within restrictions.\u201d\nN.C. Gen. Stat. \u00a7 97-2(9) (2004) states that the term disability \u201cmeans 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 Therefore, \u201c[u]nder the Workmen\u2019s [sic] Compensation Act disability refers not to physical infirmity but to a diminished capacity to earn money.\u201d Peoples v. Cone Mills Corp., 316 N.C. 426, 434-35, 342 S.E.2d 798, 804 (1986) (citation and quotation marks omitted). The employee can meet his burden to show that \u201che is unable to earn the same wages he had earned before the injury, either in the same employment or in other employment^\u201d in one of four ways:\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. Lowe\u2019s Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (citations and quotation marks omitted).\nThe Commission summarized the relevant evidence related to plaintiffs disability in findings of fact 16, 17, 18, 19 and 23:\n16. Plaintiff has been out of work since his March 16, 2006 termination. Following his termination, Plaintiff sought employment through the VA representative in Wilson, North Carolina and through the Employment Security Commission. They provided him several leads, which he pursued, but he was unable to find work for only four hours per day. Plaintiff also testified that he met with a vocational rehabilitation counselor provided by Defendant for several weeks, but was again unable to locate a job that would let him work only four hours per day.\n17. Per Dr. Martin\u2019s testimony, by April 6, 2006, Plaintiff had reached maximum medical improvement. Plaintiff underwent an FCE at Dr. Martin\u2019s direction, which indicated that Plaintiff met the standards for sedentary work (may exert up to 10 pounds of force occasionally and negligible amount of force frequently), with the exception that he could not lift any weight from waist to shoulder or shoulder to overhead with his left arm. On April 24, 2006, Dr. Martin released Plaintiff to return to work within the restrictions outlined by the FCE. Dr. Martin released Plaintiff from his care and assigned a 28% permanent partial disability rating to the left upper extremity.\n18. Plaintiff underwent a second opinion evaluation by Dr. Kevin Speer, an orthopedic surgeon, on October 4, 2006. Dr. Speer testified that he found on exam that Plaintiff had a very stiff shoulder and he could only elevate his arm actively to about chin level, which was estimated at a 50% loss in range of motion. He had extensive bursitis in his shoulder and his shoulder muscle exhibited atrophy compared to the opposite side. Dr. Speer agreed that Plaintiff was at maximum medical improvement regarding his left shoulder and assigned a 35% permanent disability rating.\n19. With respect to plaintiffs ability to work, Dr. Speer testified that Plaintiff had a very dysfunctional and painful shoulder and it was doubtful that vocational efforts or retraining would be successful even with \u2018the most remedial shoulder-sparing work efforts.\u2019 Dr. Speer testified that, within a reasonable degree of medical certainty, plaintiff would more likely than not need to be totally disabled due to his shoulder injury.\n23. The opinions of both Drs. Martin and Speer are found to be credible. With respect to the period after plaintiff reached MMI in April 2006, the totality of the medical and other evidence establishes and the Full Commission finds that plaintiff was and is severely limited by his left shoulder injury and has been totally disabled since his termination by Defendant-Employer.\nDefendants assign error to the Commission\u2019s findings of fact 16, 19, and 23, but do not present any argument on appeal challenging those findings of fact. Therefore, these findings of fact are binding on appeal. See Haley v. ABB, Inc., 174 N.C. App. 469, 474, 621 S.E.2d 180, 183 (2005) (\u201cFindings of fact to which [an appellant] has not assigned error and argued in his brief are conclusively established on appeal.\u201d (citations and quotation marks omitted)). Instead, defendants argue that the opinions of Dr. Martin and Dr. Speer as set forth in the Commission\u2019s findings are contradictory as Dr. Martin testified that plaintiff was capable of working within restrictions but Dr. Speer stated that plaintiff was totally disabled. Defendants contend that \u201c[t]hose positions are clearly inconsistent with one another, and it is logically impossible to accept them both.\u201d Defendants further argue that the Commission erroneously relied on this contradictory testimony of Dr. Martin and Dr. Speer in making its conclusion that plaintiff was totally disabled due to his shoulder injury. Contrary to defendants\u2019 contentions, the Commission\u2019s findings establish that plaintiff was disabled pursuant to two of the methods enumerated in Russell.\nFirst, the Commission\u2019s findings establish that following plaintiff\u2019s 16 March 2006 termination, he was \u201ccapable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment[.]\u201d Russell, 108 N.C. App. at 765, 425 S.E.2d at 457. Finding of fact 17 addresses plaintiff\u2019s limitations on his ability to work. Finding No. 16 sets forth plaintiff\u2019s inability to find employment within his restrictions despite his reasonable efforts.\nThe Commission\u2019s findings also establish that by October 2006 \u201cmedical evidence\u201d showed that plaintiff was \u201cphysically\u201d disabled \u201cas a consequence of the work related injury, incapable of work in any employment[.]\u201d Id. Finding of fact 18 states that plaintiff went to see Dr. Speer on 4 October 2006 for examination of his left shoulder. Finding of fact 19 states that it was Dr. Speer\u2019s opinion that \u201cPlaintiff had a very dysfunctional and painful shoulder and it was doubtful that vocational efforts or retraining would be successful even with \u2018the most remedial shoulder-sparing work efforts[,]\u2019 \u201d and that \u201cwithin a reasonable degree of medical certainty, plaintiff would more likely than not need to be totally disabled due to his shoulder injury.\u201d This medical evidence establishes that it was Dr. Speer\u2019s opinion that plaintiff was physically disabled as a consequence of his work-related shoulder injury and incapable of work. See id.\nTherefore, the Commission\u2019s findings, summarizing the testimony of Dr. Martin and Dr. Speer, were not contradictory but demonstrated that at two different times following plaintiff\u2019s termination, plaintiff established that he was disabled by two of the methods enumerated in Russell. We hold that the above findings support the Commission\u2019s conclusion that plaintiff was temporarily totally disabled. Therefore, defendants\u2019 assignment of error is overruled.\nV. Attorney\u2019s Fees for Appeal\nPlaintiff has requested an award of attorney\u2019s fees and expenses for this appeal. Pursuant to N.C. Gen. Stat. \u00a7 97-88 (2004), \u201cthe Commission or a reviewing court may award costs, including attorney\u2019s fees, to an injured employee \u2018if (1) the insurer has appealed a decision to the full Commission or to any court, and (2) on appeal, the Commission or court has ordered the insurer to make, or continue making, payments of benefits to the employee.\u2019 \u201d Brooks v. Capstar Corp., 168 N.C. App. 23, 30, 606 S.E.2d 696, 701 (2005) (quoting Brown v. Public Works Comm., 122 N.C. App. 473, 477, 470 S.E.2d 352, 354 (1996) (awarding plaintiff attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88 when defendant had appealed the Full Commission\u2019s order directing payment of additional benefits to plaintiff, even though plaintiff had previously appealed \u201cwithin the Commission\u201d)). Here, even though plaintiff appealed the deputy commissioner\u2019s decision \u201cwithin the Commission[,]\u201d see id., defendant appealed the Full Commission\u2019s order to this Court, and we affirm the Commission\u2019s order that defendants pay temporary total disability compensation to plaintiff. Therefore, the statutory requirements of N.C. Gen. Stat. \u00a7 97-88 are met. Accordingly, we remand this matter to the Commission with instruction that the Commission determine the amount due plaintiff for the costs incurred as a result of the appeal to this Court, including reasonable attorney\u2019s fees.\nVI. Conclusion\nAs the Commission\u2019s findings of fact are supported by competent evidence and those findings support the conclusions of law, Egen, 191 N.C. App. at 728, 663 S.E.2d at 918, we affirm the Commission\u2019s opinion and award and remand this matter for a determination of the appropriate amount of costs to be taxed to defendants.\nAFFIRMED AND REMANDED.\nJudges STEPHENS and BEASLEY concur.\n. In their brief on appeal, defendants claim that their first argument is based on assignments of error 1 and 4. However, in the record on appeal, defendants have two assignments of error labeled as number \u201c4.\u201d The first assigns error to the Commission\u2019s finding of fact number 16 and the second assigns error to the Commissions\u2019 finding of fact number 22. However, on appeal defendants only make an argument in their brief against a portion of finding of fact number 22 but make no mention of finding of fact number 16. Therefore, any argument as to the Commission\u2019s finding of fact 16 is deemed abandoned. N.C.R. App. P. 28(b)(6).\n. Defendants cite only one published case, Casteneda, in support of this proposition and one unpublished case. We address only Casteneda.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Alberts. Thomas, Jr., for plaintiff-appellee.", "Rudisill, White & Kaplan, RL.L.C., by Stephen Kushner, for defendant-appellant." ], "corrections": "", "head_matter": "MELVIN McLAUGHLIN, Employee, Plaintiff v. STAFFING SOLUTIONS, Employer, GALLAGHER BASSETT SERVICES, Third-Party Administrator, Defendants\nNo. COA09-739\n(Filed 3 August 2010)\n1. Workers\u2019 Compensation\u2014 suitable employment \u2014 within restrictions \u2014 competent evidence\nCompetent evidence in the record supported the Industrial Commission\u2019s finding of fact in a workers\u2019 compensation case that between the time plaintiff was terminated from his employment with defendant and the time plaintiff reached maximum medical improvement, plaintiff was unable to find suitable employment within the restrictions related to his injury.\n2. Workers\u2019 Compensation\u2014 total disability compensation\u2014 failure to obtain other employment \u2014 due to injury-related work restrictions\nThe Industrial Commission did not erroneously conclude that plaintiff was eligible for continuing temporary total disability compensation under the test established in Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228. The Commission\u2019s conclusion that plaintiff\u2019s failure to obtain other employment was due to his injury-related work restrictions was supported by the Commission\u2019s findings of fact. Moreover, contrary to defendant\u2019s contention, the Seagraves test is not applicable only when plaintiff\u2019s injury played a role in his termination.\n3. Workers\u2019 Compensation\u2014 disability established\nThe Industrial Commission did not err in finding that plaintiff was disabled within the meaning of N.C.G.S. \u00a7 97-2(9). The Commission\u2019s findings of fact established that plaintiff was disabled pursuant to two methods enumerated in Russell v. Lowe\u2019s Prod. Distrib., 108 N.C. App. 762.\n4. Workers\u2019 Compensation \u2014 fees and costs for appeal\nPlaintiff\u2019s request for attorney fees for the appeal to the Court of Appeals in a workers\u2019 compensation case was granted as plaintiff satisfied the statutory requirements of N.C.G.S. \u00a7 97-88.\nAppeal by defendants from Opinion and Award entered 24 February 2009 by the North Carolina Industrial Commission. Heard in the Court of Appeals 5 November 2009.\nAlberts. Thomas, Jr., for plaintiff-appellee.\nRudisill, White & Kaplan, RL.L.C., by Stephen Kushner, for defendant-appellant." }, "file_name": "0137-01", "first_page_order": 161, "last_page_order": 176 }