Mayhorn v. Manpower, Inc.
I.C. NO. W12746.
N.C. Indus. Comm.Sep 16, 2011Background
- Plaintiff Kimberlyn Mayhorn, around 54, employed by Manpower, suffered October 29, 2008 injury while performing light industrial work.
- Injuries: left knee, left ankle, and left foot from stepping on a broken pallet; treated with restrictions and later surgery consideration.
- Employer provided a return-to-work program at Family Care (thrift store) with restrictions; Plaintiff sometimes failed to report to work.
- Plaintiff terminated December 1, 2008 for attendance issues; later medical evidence showed ongoing left foot/low back symptoms.
- Medical history includes Dr. Edwards (initial treating) and later Drs. Geideman and Davis diagnosing gait alteration, nerve irritation, and need for surgical intervention; surgery performed April 8, 2010.
- Stipulations: injury arising out of employment; average weekly wage $495; defendants admitted liability for the injury; Form 60 acknowledging liability; unresolved Form 22 wage chart.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Plaintiff totally disabled and entitled to benefits from Nov 14, 2008? | Mayhorn proven unable to earn wages per Russell second prong. | Employer contends partial/unspecified disability; insufficient showing of continued incapacity. | Plaintiff entitled to TTDB from Nov 14, 2008 to Oct 5, 2009 under Russell |
| Did Defendants prove Plaintiff refused suitable employment at the thrift store? | Shop position reflected ability to earn in market; suitable employment existed. | Thrift-store job not representative of market wages; not suitable. | Defendants failed to prove Plaintiff refused suitable employment; §97-32 not applicable |
| Is Plaintiff completely disabled from Oct 5, 2009 onward? | Medical evidence showed inability to work due to physical condition. | No sufficient medical link to extent; questions unresolved. | Plaintiff totally disabled from Oct 5, 2009 continuing |
| What is Plaintiff's average weekly wage and compensation rate for TTDB? | AWP agreed at $495; Form 22 not produced to adjust. | Form 22 lacking; wage chart not provided; inconsistent rate possible. | AWP $495; compensation rate $330.02 per week; stipulations binding |
| What are the medical expenses and employer's responsibility for treatment post-injury? | Medical treatment causally related and should be paid. | Disputed medical causation for some treatments; not all bills covered. | Defendants liable for all medical expenses related to the compensable injury and related conditions |
Key Cases Cited
- Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867 (1997) (presumption of medical causation once liability admitted)
- Perez v. Am. Airlines/AMR Corp., 174 N.C. App. 128, 620 S.E.2d 288 (2005) (extends causation presumption for medical treatments)
- Shah v. Howard Johnson, 140 N.C. App. 58, 68, 535 S.E.2d 577 (2000) (definition of suitable employment; burden on employer)
- Burwell v. Winn-Dixie Raleigh, 114 N.C. App. 69, 73, 441 S.E.2d 145 (1994) (definition of suitable employment and market wages)
- Saums v. Raleigh Community Hospital, 346 N.C. 760, 487 S.E.2d 746 (1997) (suitability and market comparison for work offered)
- Smith v. Sealed Air Corp., 127 N.C. App. 359, 489 S.E.2d 445 (1997) (pre-MMI suitable employment standards)
- Russell v. Lowe's Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993) (four methods to prove inability to earn prior wages)
- Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982) (burden to show inability to earn wages)