Dеfendant-employer appeals from an opinion and award of the North Carolina Industrial Commission awarding plaintiff benefits for temporary total disability. The record establishes that in 1992, plaintiff developed bilateral carpal tunnel syndrome and associated right tardy ulnar nerve palsy in сonnection with her employment as an assembly line worker at defendant-employer’s plant in Yadkinville, North Carolina. Plaintiff underwent multiple corrective surgical pro cedures during the period from June 1992 until May 1993. Defendant, who was self-insured, accepted liability for plaintiff’s occupationаl disease and plaintiff received benefits for temporary disability.
In July 1993, plaintiff was permitted by her physician to return to light duty work with defendant, and light duty work was provided to her in the form of a non-production job making boxes. On 9 August 1993, however, defendant terminated plaintiffs employment for alleged gross misconduct аrising out of an incident in which plaintiff briefly exposed her buttocks to two female co-employees during horseplay at the workplace.
After her termination, plaintiff continued to experience difficulties with her hands and was seen by Dr. Andrew Roman at the Wake
Declining to decide whether plaintiff’s conduct constituted cause for defеndant to terminate her employment, the deputy commissioner found that such conduct was, in any event, not tantamount to a refusal to accept suitable light work. He concluded, in the absence of such light duty work and because she retained permanent partial disabilities in both hands, that plаintiff remained totally disabled and awarded her benefits for temporary total disability from 9 August 1993, the date of her termination by defendant, to 8 February 1994, the date of her surgery, and from 13 July 1994 and continuing for the period of her disability. Defendant appealed to the Full Commission. While the appeal to the Full Commission was pending, defendant moved, pursuant to Rule 701(7) of the Workers’ Compensation Rules, for a new hearing to take additional evidence on the issue of plain tiff’s disability, supported by an affidavit tending to show that plaintiff had been employed at a nursing home from 21 November 1994 to 27 December 1994.
The Full Commissiоn entered its opinion and award finding that defendant had not shown good grounds to take further evidence, adopting the findings made by the deputy commissioner, and awarding plaintiff benefits for temporary total disability from 9 August 1993 and continuing for as long as plaintiff remains totally disabled, subject to a credit for benefits paid from 8 February 1994 to 13 July 1994, and reasonable and necessary medical expenses.
G.S. § 97-32 provides:
If 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.
The primary question presented by this appeal is whether an employee, who is disabled as a result of a compensable injury and is provided with light duty employment by the employer, constructively refuses the light duty work and forfeits workers’ compensatiоn benefits for such disability pursuant to the statute upon termination of the employment for fault or misconduct unrelated to the compensable injury. The question is apparently one of first impression in North Carolina.
Courts in other jurisdictions have approached the issue in divergent ways. On one hand, it has been held that a disabled employee who can perform the light duty work provided by his or her employer, yet is fired for conduct that would normally result in the termination of a nondisabled employee and that in no way is connected with the disability, is in actuality refusing to perform the work, and is barred,
ipso facto,
from receiving any further disability benefits.
Calvert v. General Motors Corp., Buick Motor Div.,
In
Calvert,
the disabled employee, who had returned to “favored” work at General Motors after sustaining a wоrk-related injury, was
discharged for violating a company rale against possession of weapons on company premises. The Workers’ Compensation Appeals Board awarded a resumption of compensation
The Michigan Court of Appeals reversed the Board, holding that even though the employee’s conduct was not morally turpitudinous, it was preventable misconduct for which any employee would have been discharged.
Id.
at 643,
“If defendant can show that plaintiff was fired for violation of company rules which would normally result in termination of a nondisabled employee, and that the violation was not caused by plaintiff’s disability, the benefits may be properly denied.
By establishing the sеcond prong of this test, both parties are protected. The employee is guarded against termination or harassment leading to voluntary termination as a pretext to denial of benefits. The employer is insulated against unacceptable behavior which normally would result in termination of other employees. A disabled employee who can perform that favored work, yet violates company rales to the extent that discharge is justified, in actuality is refusing to perform the favored work and thus creating a bar to compensation . . . [citation omitted].”
Thereforе, the Court concluded, plaintiff’s conduct in carrying a concealed weapon was “just cause” for the employee’s discharge, barring her from receiving further compensation.
Id.
at 643-44,
Courts in other jurisdictions, however, have taken a somewhat different approach and held that an еmployee’s discharge from light duty work for misconduct unrelated to his or her disability does not automatically bar the employee from receiving disability benefits. To these courts, the simple fact of termination for misconduct is not the sole dispositive factor in determining eligibility for benefits.
For example, in
Marsolek v. George A. Hormel Co.,
The Minnesota Supreme Court affirmed in part and reversed in part the order of the Workers’ Compensation Court of Appeals, and remanded the case to the compensation judge. Noting that the primary purpose of workers’ compensation is to compensate injured workers for wage loss attributable to a work injury, the Court stated:
[W]e now hold that a justifiable discharge for misconduct suspends an injured employee’s right to wage loss benefits; but the suspension of entitlement to loss benefits will be lifted once it has become demonstrable that the employee’s work-related disability is the cause of the employee’s inability to find or hold new employment. Such a determination should be made upon consideration of the totality of the circumstances including the usual work search “requirements.”
Id. at 924.
Similarly, in
PDM Molding, Inc. v. Stanberg,
On appeal to the Colorado Supreme Court, the employer argued that the employee should not be eligible for temporary total disability benefits because he was terminated for fault. The Court disagrеed, holding in
As long as limitations resulting from an industrial injury contribute to a claimant’s inability to secure employment at pre-injury wage levels, compensation benefits are payable for loss of earning capacity. If, on the other hand, the injury and its seq-uelae play no part in the worker’s inability to find suitable employment, there is no compensable loss of earning capacity .... We do not seek to encourage misconduct by seeming to reward it [but] we fail to see the wisdom in holding that an employee who loses a pоst-injury job because of misconduct voluntarily forfeits benefits for a loss of earning capacity which, depending on the nature and extent of disability, may be quite profound .. . [citations omitted].
Id. at 548. The Court remanded the case to the administrative judge since no determination had been made with resрect to whether the employee was terminated for fault or whether his injury contributed in part to his subsequent wage loss. Id.
We believe the latter approach, as opposed to that advocated by defendant, more closely comports with the underlying purpose of North Carolinа’s Workers’ Compensation Act to provide compensation to workers whose earning capacity is diminished or destroyed by injury arising from their employment,
Branham v. Panel Co.,
In the present case, the Industrial Commission declined to decide the threshold question of whether plaintiff’s conduct
In light of our decision, we need not discuss defendant’s remaining assignments of error relating to the Commission’s refusal to receive additional evidence with respect to whether plaintiff had, in fact, been employed during the period for which she claimed entitlement to benefits for temporary total disability. Evidence with respect to plaintiff’s ability to hold employment, and the extent thereof, is clearly relevant to the issues which we have remanded for the Commission’s consideration.
Reversed and remanded.