217 N.C. App. 332
N.C. Ct. App.2011Background
- Keeton, a Circle K Market Manager, was injured in a motor vehicle accident on 9 June 2008; compensability was admitted.
- Disability benefits began 20 October 2008 after Keeton took medical leave for knee, back, and head injuries.
- Defendants filed Form 24 to terminate benefits on 28 August 2009; Deputy Commissioner Baucom denied on 7 October 2009.
- Keeton never returned to work after leave, was terminated in June 2009 for failure to report; she sought treatment and restrictions followed.
- Evidence showed diagnoses including lumbar strain, disc protrusion at L5-S1, and various doctors' opinions endorsing a Winston-Salem Market Manager position as suitable.
- Full Commission found Winston-Salem position within Keeton’s restrictions; Keeton failed to make a reasonable effort to return and refused suitable employment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Keeton’s refusal of suitable employment proper to evaluate? | Keeton’s refusal was justified due to unknown future physician depositions. | Full Commission properly considered suitable employment and withdrawal from job. | Yes; Full Commission properly considered refusal as issue. |
| Did Keeton voluntarily terminate employment, precluding Seagraves analysis? | Keeton’s termination was involuntary due to medical leave. | Termination occurred after medical leave; voluntary for purposes of 97-32 analysis. | Keeton voluntarily ended employment; Seagraves not applicable. |
| Was the Winston-Salem Market Manager position suitable employment? | Position may be unsuitable given restrictions and driving limits. | Experts supported suitability given 20-pound lift limit and breaks; FCE aligns. | Yes; position was suitable for Keeton. |
| Did Keeton make a reasonable effort to return to work? | Keeton believed she could not return until physicians evaluated; thus reasonable effort was ongoing. | Keeton made no effort to contact Circle K after leave and after medical leave expired. | Keeton did not make a reasonable effort; unjustified refusal. |
Key Cases Cited
- Seagraves v. Austin Co. of Greensboro, 123 N.C.App. 228 (1996) (constructive refusal analysis under 97-32)
- White v. Weyerhaeuser Co., 167 N.C.App. 658 (2005) (voluntary vs involuntary termination governs 97-32 analysis)
- Whitfield v. Lab. Corp. of Am., 158 N.C.App. 341 (2003) (constructive refusal framework under 97-32)
- Johnson v. S. Tire Sales & Serv., 358 N.C. 701 (2004) (appellate review of substantiated findings)