207 N.C. App. 683
N.C. Ct. App.2010Background
- Plaintiff sustained a compensable left leg injury on 4 August 2005; claim accepted 18 August 2005 with ongoing disability and medical compensation.
- The employer identified two post-injury job options (radio operator and Fleet Manager's Assistant), largely sedentary, within Plaintiff's restrictions after MMI noted 21 January 2008.
- Dr. Noojin approved both options; he later rescinded MMI following an MRI showing a meniscal tear and performed left knee surgery on 1 July 2008.
- Plaintiff was released to light-duty sedentary work on 7 July 2008; the Fleet Manager's Assistant position, offering $19.50/hour, was presented by letter on 30 July 2008 and again 8 October 2008.
- Plaintiff demanded a company truck for commuting, which the employer refused; Dr. Noojin testified Plaintiff could drive, and the distance to Wilmington was about 60 miles from Cerro Gordo.
- The Full Commission found the Fleet Manager's Assistant position suitable and that Plaintiff unjustifiably refused it, and held Plaintiff not disabled beyond the date he reached MMI; Plaintiff appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Fleet Manager's Assistant was suitable employment | Plaintiff argues the job was make-work or not in the market. | Employer contends the position is a real job in the market, not make-work. | Suitable employment; Plaintiff unjustifiably refused. |
| Whether Plaintiff proved disability beyond MMI | Plaintiff argues earning capacity could not be restored post-injury. | Employer asserts Plaintiff could earn pre-injury wages with the offered job or other work. | No disability beyond MMI; earning-capacity evidence insufficient. |
| Whether distance/commuting affected suitability | Distance to Wilmington was a barrier to suitability. | Distance weighed but was not dispositive; truck policy was the real issue. | Distance not dispositive; refusal based on truck policy not commuting distance. |
| Weight and credibility of expert testimony on earning capacity | Yost offered little credible earning-capacity opinion supporting non-employability. | Commission could credit other evidence; Yost’s testimony had limited weight. | Commission properly afforded limited weight to Yost; kept findings intact. |
Key Cases Cited
- Peoples v. Cone Mills Corp., 316 N.C. 426 (1986) (limits on make-work and availability in market for suitable employment)
- Moore v. Concrete Supply Co., 149 N.C.App. 381 (2002) (employer cannot avoid compensation by creating makeshift positions)
- Munns v. Precision Franchising, Inc., 196 N.C.App. 315 (2009) (presence of real job in market supports suitability)
- Shah v. Howard Johnson, 140 N.C.App. 58 (2000) (distance ordinarily a factor in suitability; not dispositive)
- Hassell v. Onslow Cty. Bd. of Educ., 362 N.C. 299 (2008) (Commission credibility determinations may be based on witness demeanor and reliability)