{ "id": 4347456, "name": "ULDARICA M. KEETON, Employee, Plaintiff v. CIRCLE K, Employer, CONSTITUTION STATE SERVICE COMPANY, Carrier, Defendants", "name_abbreviation": "Keeton v. Circle K", "decision_date": "2011-12-06", "docket_number": "No. COA11-632", "first_page": "332", "last_page": "338", "citations": [ { "type": "official", "cite": "217 N.C. App. 332" } ], "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": "123 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": -1 }, { "cite": "599 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "512" } ], "opinion_index": 0 }, { "cite": "358 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987216 ], "year": 2004, "pin_cites": [ { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0701-01" ] }, { "cite": "581 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187488 ], "year": 2003, "pin_cites": [ { "page": "354-55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0341-01" ] }, { "cite": "606 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2005, "pin_cites": [ { "page": "395" }, { "page": "395" }, { "page": "395" }, { "page": "395" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8413338 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "665" }, { "page": "665-66" }, { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0658-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "opinion_index": 0 }, { "cite": "472 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "123 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11912671 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/123/0228-01" ] } ], "analysis": { "cardinality": 628, "char_count": 16477, "ocr_confidence": 0.748, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1477290760967145 }, "sha256": "d22de9ef530de35f4e5bb8384130c2a9ab8961d741aa79909f55494fb57c29fb", "simhash": "1:a4156f2f727f30b6", "word_count": 2521 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ELMORE concur." ], "parties": [ "ULDARICA M. KEETON, Employee, Plaintiff v. CIRCLE K, Employer, CONSTITUTION STATE SERVICE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "STEPHENS, Judge.\nOn 28 August 2009, Defendant-employer Circle K and Defendant-carrier Constitution State Service Company (\u201cDefendants\u201d) filed with the North Carolina Industrial Commission a Form 24 application to terminate Plaintiff Uldarica M. Keeton\u2019s disability benefits, which commenced on 20 October 2008 after Keeton sustained a compensable injury in the course of her employment with Circle K. On 7 October 2009, Special Deputy Commissioner Emily M. Baucom entered an administrative decision and order disapproving Defendants\u2019 application. Defendants appealed by requesting an evidentiary hearing.\nOn 3 December 2009, the matter was heard before Deputy Commissioner Myra L. Griffin. Deputy Commissioner Griffin entered a 4 August 2010 opinion and award, in which she concluded, inter alia, that Keeton \u201cfailed to prove that any disability or inability to earn wages she has had ... is related to her [prior compensable] injury by accident.\u201d Keeton appealed Deputy Commissioner Griffin\u2019s opinion and award to the Full Commission.\nThe evidence before the Full Commission tended to show the following: Before her injury, Keeton was a Circle K Market Manager in Charlotte whose primary duty was \u201cto supervise the day-to-day operations of each [Circle K] store in [her] market.\u201d On 9 June 2008, while traveling to a Circle K store, Keeton was injured in a motor vehicle accident. Defendants admitted compensability, and Keeton sought treatment \u201cfor complaints of left knee pain, low back pain and headaches.\u201d Thereafter, Keeton \u201cwas diagnosed with a lumbar strain, knee contusion, and face/scalp contusion, and was released to return to her regular activity.\u201d Following her release, Keeton continued treatment, was referred for physical therapy, and underwent \u201can MRI scan of the brain.\u201d Keeton was subsequently discharged from treatment and again instructed to return to regular activity.\nKeeton returned to work at Circle K, and on 25 September 2008, she was transferred to the Winston-Salem market. Keeton traveled to the Winston-Salem market one time before seeking medical treatment on 2 October 2008 for complaints of worsening headaches and low back pain, allegedly associated with her commute from Charlotte to Winston-Salem. Keeton went on medical leave on 13 October 2008, and disability compensation commenced on 20 October 2008. Thereafter, Keeton \u201cneither returned to Winston-Salem to work as the Market Manager, nor did she contact [Circle K] regarding returning to work in any other capacity,\u201d and in June 2009 she \u201cwas terminated by [Circle K] for failure to return to work from medical leave.\u201d\nBetween October 2008 and January 2010, Keeton received the following medical advice and treatment: (1) based on an MRI, x-rays, an EMG, and nerve conduction studies, Dr. Theodore Belanger noted \u201ca small central disc protrusion at the L5-S1 level,\u201d assigned work restrictions of \u201cno lifting greater than 20 pounds, no prolonged bending, stooping, squatting, kneeling or twisting, and no driving for more than one hour,\u201d and assigned \u201ca five percent permanent partial disability rating\u201d to Keeton\u2019s back; (2) based on an MRI, an EMG, and a nerve conduction study, Dr. John Welshofer noted \u201ca desiccated disc with central disc bulge at L5-S1\u201d and opined that Keeton\u2019s \u201csitting intolerance was related to pressure in the disc in the low back\u201d; (3) Dr. T. Kern Carlton diagnosed Keeton with a lumbar strain, concussion, and central disc protrusion and placed her on \u201clight duty restrictions which included lifting 20 pounds occasionally\u201d; and (4) a Functional Capacity Evaluation (\u201cFCE\u201d) revealed that Keeton was capable of \u201clifting up to 35 pounds occasionally,\u201d \u201ccarrying up to 35 pounds occasionally,\u201d and \u201cpushing and pulling up to 45 pounds of force.\u201d Drs. Belanger, Welshofer, and Carlton each opined that the Circle K Market Manager position in Winston-Salem was suitable employment for Keeton.\nBased on the foregoing evidence, the Full Commission found, inter alia, that (1) the Market Manager position in Winston-Salem fell within Keeton\u2019s permanent restrictions; (2) Keeton did not make a reasonable effort to return to the Market Manager position in Winston-Salem; and (3) Keeton\u2019s \u201crefusal of this position was not justified.\u201d Therefore, the Full Commission concluded Keeton \u201cis not entitled to any compensation at any time during the continuance\u201d of her unjustified refusal to return to her job. The Full Commission determined that Keeton \u201cis not entitled to payment by [Defendants of any disability compensation after August 28, 2009, and compensation shall be suspended so long as [Keeton] continues to refuse to accept suitable employment offered by [Circle K].\u201d From the opinion and award of the Full Commission, Keeton appeals.\nOn appeal, Keeton first argues that the Full Commission\u2019s findings of fact and conclusions of law regarding \u201crefusal of suitable employment\u201d were improper because that issue was not \u201craised by Defendants in the pre-trial agreement.\u201d We disagree. The parties stipulated that the issue of \u201c[w]hether [Defendants\u2019 Form 24 [application should have been approved\u201d was before the Industrial Commission. In her denial of Defendants\u2019 Form 24 application, Special Deputy Commissioner Baucom (I) noted Keeton\u2019s contention \u201cthat she is physically unable to return to her former position\u201d; (2) noted Defendants\u2019 contention that Keeton\u2019s physical restrictions \u201cdo not impair [her] ability to obtain employment\u201d; (3) found that \u201cthe documentation is insufficient to show that [Keeton] is no longer totally disabled\u201d; and (4) concluded that Defendants were not entitled to suspend or terminate Keeton\u2019s disability compensation. In our view, the foregoing tends to indicate that in denying Defendants\u2019 Form 24 application, Special Deputy Commissioner Baucom considered both the suitability of Keeton\u2019s prior employment with Circle K and Keeton\u2019s failure to return to that employment. As such, review of Special Deputy Commissioner Baucom\u2019s order would necessarily include consideration of Keeton\u2019s alleged \u201crefusal of suitable employment.\u201d Furthermore, in her review of Special Deputy Commissioner Baucom\u2019s order, Deputy Commissioner Griffin found that the Market Manager position was suitable employment for Keeton and that \u201c[Keeton\u2019s] refusal of this position was not justified.\u201d Because the issue of Keeton\u2019s refusal of employment was before both Special Deputy Commissioner Baucom and Deputy Commissioner Griffin, we conclude that the Full Commission properly considered that issue and made relevant findings of fact and conclusions of law. Keeton\u2019s argument is overruled.\nKeeton next argues that the Full Commission erred in not following this Court\u2019s holding in Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996). Specifically, Keeton claims that there was no \u201cactual refusal\u201d of employment by Keeton such that her termination by Circle K should be considered \u201cconstructive refusal of suitable employment\u201d under Seagraves. We disagree.\nSection 97-32 provides:\nIf an injured employee refuses employment procured for him suitable to his capacity he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified.\nN.C. Gen. Stat. \u00a7 97-32 (2009). This Court has previously held that in applying section 97-32, \u201cthe first question is whether the plaintiffs employment was voluntarily or involuntarily terminated.\u201d White v. Weyerhaeuser Co., 167 N.C. App. 658, 665, 606 S.E.2d 389, 395 (2005). \u201cIf the termination is voluntary and the \u2018employer meets its burden of showing that a plaintiff unjustifiably refused suitable employment, then the employee is not entitled to any further benefits under [sections] 97-29 or 97-30.\u201d Id. (quoting Whitfield v. Lab. Corp. of Am., 158 N.C. App. 341, 354-55, 581 S.E.2d 778, 787 (2003)). On other hand, it is only if the departure is determined to have been involuntary that the question becomes \u201cwhether the termination amounted to a constructive refusal of suitable work under [Seagraves].\u201d Id. at 665-66, 606 S.E.2d at 395.\nIn this case, the Full Commission found \u2014 and Keeton does not dispute \u2014 -that after Keeton began medical leave on 13 October 2008, she never returned to work at Circle K and never contacted Circle K \u201cregarding returning to work in any other capacity.\u201d Testimony from Keeton\u2019s supervisor shows that a Circle K employee\u2019s job is protected during a period of medical leave for up to 12 weeks. Although Circle K ultimately terminated Keeton\u2019s employment in June 2009, that termination came (1) more than 30 weeks after Keeton\u2019s last contact with Circle K, and (2) more than 18 weeks after Keeton\u2019s protected medical leave expired. Further, Keeton testified that during the time she was out of work but not yet terminated from employment, she was contacting \u201cstaffing agencies and recruiters\u201d to \u201ckeep [her] options open and see what was out there.\u201d The foregoing evidence\u2014 tending to show that Keeton never contacted Circle K during medical leave or in the more than 18 weeks following the expiration of medical leave and that she was actively seeking alternate employment\u2014 is sufficient to show that Keeton voluntarily ended her employment at Circle K. This voluntariness obviated any consideration by the Full Commission of \u201cconstructive refusal\u201d under Seagraves. White, 167 N.C. App. at 665-66, 606 S.E.2d at 395. Keeton\u2019s argument is overruled.\nKeeton next argues that the Full Commission erred \u201cin finding and concluding that the Market Manager position in Winston-Salem was suitable employment.\u201d We are unpersuaded. First, the testimony of Drs. Belanger, Welshofer, and Carlton all support the finding that the Winston-Salem position was suitable. Second, despite any alleged contradiction of the doctors\u2019 testimony by the FCE, findings of fact by the Full Commission are conclusive on appeal when supported by competent evidence even where evidence exists that would support a contrary finding. Johnson v. S. Tire Sales & Serv., 358 N.C. 701, 705, 599 S.E.2d 508, 512 (2004). Because the Full Commission\u2019s finding is supported by competent evidence, we conclude that the Full Commission did not err in finding that the Winston-Salem position was suitable. Further, we conclude that this finding justifies a similar conclusion of law. Keeton\u2019s argument is overruled.\nFinally, Keeton argues that the Full Commission erroneously found that Keeton \u201cdid not make a reasonable effort to return to the Market Manager position in Winston-Salem.\u201d As such, Keeton contends, the Full Commission\u2019s conclusion that Keeton \u201cunjustifiably refused to return to her job\u201d was erroneous. As discussed supra, there is competent evidence showing that Keeton made no effort to return to her job at Circle K. Accordingly, the Full Commission\u2019s finding that Keeton \u201cdid not make a reasonable effort to return\u201d is supported by competent evidence and, thus, binding on appeal. See id. The only question, then, is whether the finding that Keeton failed to return to work supports the conclusion that Keeton unjustifiably refused to return to work.\nKeeton contends that her refusal to return to work was justified because \u201cthere is no evidence to establish that [she] knew or should have known that she could at least attempt a trial return to work as a market manager until the completion of the treating physicians\u2019 depositions, nearly a year after her June 2009 termination.\u201d Keeton argues that prior to the treating physicians\u2019 evaluation of the Winston-Salem Market Manager position, she believed she could not return to work and, therefore, her refusal to work was justified. The upshot of Keeton\u2019s argument on this issue is that a refusal of suitable employment is \u201cjustified\u201d if the employee believes she is unable to perform the available work. For obvious reasons, we decline to hold that the Full Commission must base its determination of whether an employee\u2019s refusal is justified solely on that employee\u2019s lay opinion that she is unable to perform the work available.\nPer section 97-32, it is left to \u201cthe opinion of the Industrial Commission\u201d whether an employee\u2019s refusal of suitable employment is justified. N.C. Gen. Stat. \u00a7 97-32. In this case, the Full Commission concluded as follows:\nThe medical evidence, including the testimony of Drs. Belanger, Carlton and Welshofer, establishes that the Market Manager position in Winston-Salem was a suitable position for [Keeton], Therefore, [Keeton] unjustifiably refused to return to her job, which was suitable employment available to her, when she stopped reporting to work following her initial visit to the stores in the Winston-Salem market.\nThis conclusion was supported by the following findings by the Full Commission: after Keeton was terminated, Drs. Belanger, Carlton, and Welshofer reviewed the Winston-Salem Market Manager position and opined that the position was suitable as long as Keeton was permitted to take short breaks during driving and was not required to lift more than 20 pounds; before Keeton was terminated, Keeton was assigned work restrictions of \u201cno lifting greater than 20 pounds, no prolonged bending, stooping, squatting, kneeling or twisting, and no driving for more than one hour\u201d; a Circle K market manager has \u201cthe option of performing physical work; however, they are not required to do so\u201d and \u201chave the authority to delegate physical work.\u201d These findings, which were adequately supported by the evidence in the record, combined with the absence of any evidence that short driving breaks were prohibited by Circle K, adequately support the Full Commission\u2019s conclusion that Keeton unjustifiably refused suitable employment with Circle K. Accordingly, Keeton\u2019s argument that the Full Commission erroneously concluded that Keeton\u2019s refusal was unjustified is overruled.\nWe conclude that the Full Commission appropriately determined that Keeton is not entitled to further benefits based on its conclusions that Keeton\u2019s employment termination was voluntary and that Circle K met its burden of showing that Keeton unjustifiably refused suitable employment. White, 167 N.C. App. at 665, 606 S.E.2d at 395. The Full Commission\u2019s opinion and award is\nAFFIRMED.\nChief Judge MARTIN and Judge ELMORE concur.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Oxner Thomas + Permar, pile, by Louis A. Waple and Kristin P Henriksen, for Plaintiff", "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by M. Duane Jones and Neil P. Andrews, for Defendants." ], "corrections": "", "head_matter": "ULDARICA M. KEETON, Employee, Plaintiff v. CIRCLE K, Employer, CONSTITUTION STATE SERVICE COMPANY, Carrier, Defendants\nNo. COA11-632\n(Filed 6 December 2011)\n1. Workers\u2019 Compensation \u2014 refusal of suitable employment\u2014 findings of fact \u2014 conclusions of law\nThe Industrial Commission did not err in a workers\u2019 compensation case by its findings of fact and conclusions of law regarding refusal of suitable employment. Because the issue of plaintiff\u2019s refusal of employment was before both the special deputy commissioner and deputy commissioner, the full Commission properly considered that issue and made relevant findings of fact and conclusions of law.\n2. Workers\u2019 Compensation \u2014 suitable employment \u2014 constructive refusal \u2014 voluntariness\nThe Industrial Commission did not err in a workers\u2019 compensation case by concluding plaintiff\u2019s termination was not considered constructive refusal of suitable employment under Seagraves, 123 N.C. App. 288. The evidence tending to show that plaintiff never contacted his employer during medical leave or in the more than 18 weeks following the expiration of medical leave and that she was actively seeking alternate employment was sufficient to show that plaintiff voluntarily ended her employment.\n3. Workers\u2019 Compensation \u2014 suitable employment \u2014 manager position\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding and concluding that the Market Manager position in Winston-Salem was suitable employment.\n4. Workers\u2019 Compensation \u2014 return to work \u2014 reasonable effort\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that plaintiff did not make a reasonable effort to return to the Market Manager position in Winston-Salem. There was competent evidence showing that plaintiff made no effort to return to this job.\nAppeal by Plaintiff from opinion and award entered 10 March 2011 by the North Carolina Industrial Commission. Heard in the Court of Appeals 14 November 2011.\nOxner Thomas + Permar, pile, by Louis A. Waple and Kristin P Henriksen, for Plaintiff\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P., by M. Duane Jones and Neil P. Andrews, for Defendants." }, "file_name": "0332-01", "first_page_order": 342, "last_page_order": 348 }