Barnes v. Geneva Corporation
I.C. NO. 631985.
| N.C. Indus. Comm. | Jul 13, 2011Background
- Plaintiff, 42, skilled Diesel Technician/Mechanic, sustained a June 23, 2006 injury by accident arising out of and in the course of employment, resulting in open tibia/fibula fractures; treated with external fixator, later internal fixation, and physical therapy.
- Defendants accepted the injury as compensable via Form 60 dated October 18, 2006 and paid ongoing total disability from June 24, 2006.
- Dr. Messina released Plaintiff to light-duty work of four hours per day on October 30, 2006 with 80% standing/walking/squatting/carrying limitation; Plaintiff worked light-duty, earning less than pre-injury wages.
- August 2007: MMI with 15% permanent partial disability (PPD) to the right foot; Plaintiff returned to full-duty work.
- August 14, 2009: hardware removal due to infection; Plaintiff again excused from work; February 24, 2010 Dr. Messina released him to full-duty but with ongoing ankle limitations; no suitable diesel technician position available due to workforce reductions.
- As of February 24, 2010 Plaintiff remained temporarily totally disabled from any employment; later opinions assigned 20% PPD by Dr. Marushack, but the disability finding pertinent to the award remained ongoing total disability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ongoing total disability payments should be suspended. | Plaintiff argues continued disability due to no suitable work and post-traumatic arthritis. | Defendants contend Plaintiff could perform prior duties or find suitable work and thus payments should be limited. | Disability continued; payments awarded from Feb 24, 2010. |
| Whether Defendants must pay medical expenses related to the compensable injury. | Medical expenses related to right foot/ankle should be covered. | Costs must follow established IOC procedures. | Defendants required to pay approved medical expenses. |
| Whether vocational rehabilitation services must be provided. | Plaintiff is entitled to vocational rehab to regain employment. | Employer should provide such services as needed. | Defendants ordered to provide vocational rehabilitation. |
| What is the appropriate remedy and attorney's fee on the award? | Award should include ongoing total disability and medical costs; attorney's fee warranted. | Standard fee applicable. | Award includes 25% attorney's fee of awarded compensation. |
Key Cases Cited
- Sims v. Charmes/Arby's Roast Beef, 142 N.C. App. 154, 542 S.E.2d 277 (2001) (disability burden-shifting in workers' compensation)
- Russell v. Lowe's Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993) (continuing disability proof when capable of work but no successful job search)
- Demery v. Perdue Farms, Inc., 143 N.C. App. 259, 545 S.E.2d 485 (2001) (employer must show available suitable jobs considering physical/vocational limits)