Lead Opinion

*********** Upon review of the competent evidence of record with reference to the errors assigned, and finding no good grounds to receive further evidence or to rehear the parties or their representatives, the Full Commission upon reconsideration of the evidence affirms with minor modifications the Opinion and Award of the Deputy Commissioner.

*********** The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing before the Deputy Commissioner as:

STIPULATIONS 1. The Industrial Commission has jurisdiction over the subject matter of this case, the parties are properly before the Commission, and the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act at all relevant times.

2. Liberty Mutual Insurance Company was the carrier on the risk.

3. The employee-employer relationship existed between the parties at all relevant times.

4. Judicial Notice is taken of the Opinion and Award filed on 29 October 2001, wherein plaintiff was found to have sustained injuries as a result of a specific traumatic incidents of the work assigned on 20 September 1999 and 19 April 2000. Defendants paid plaintiff all disability benefits under the Opinion on 17 December 2001.

5. Plaintiff's average weekly wage was $375.89, which yields a compensation rate of $250.50 per week.

6. The issue for determination is to what, if any, additional benefits is plaintiff entitled as a result of the compensable 20 September 1999 and 19 April 2002 incidents?

7. Judicial Notice is taken of Dr. Poehling's deposition transcript from the prior hearing at page 9, line 11 through page 10, line 5.

8. The defendant-employer terminated plaintiff on 10 December 2001.

*********** Based upon all of the competent evidence adduced from the record and the reasonable inferences therefrom, the undersigned makes the following

FINDINGS OF FACT 1. At the time of the hearing, plaintiff was a thirty-two year old male. He had a pre-existing back condition which was aggravated by the 20 September 1999 compensable injury. On 19 April 2000, plaintiff's second compensable injury caused a recurrent herniated disc at L5-S1, for which defendants provided medical treatment and indemnity benefits under the 29 October 2001 Opinion and Award.

2. Throughout his employment with defendant-employer, plaintiff had been reprimanded for his work attendance, both before and since the workplace injuries. In 1998, plaintiff was reprimanded in his performance review for his attendance.

3. On 11 December 2000, plaintiff returned to work for the defendant-employer.

4. Attendance is important due to the time-sensitive nature of defendant-employer's industry. Therefore, defendant-employer developed and uniformly applied its attendance policy to all its employees.

5. In accordance with the attendance policy, employees with six months to six years of employment were entitled to six days of sick leave and ten vacation days per year. Employees are charged with a Full Date Occurrence (FDO) anytime they are not at work if the absence does not qualify as vacation, sick, funeral, holiday or jury duty leave, as spelled out in the policy. Employees who incur two FDO's in twelve months are given a verbal warning. Those with three FDO's in twelve months receive a written warning. Those with more than three FDO's in twelve months may be terminated.

6. Under the attendance policy, employees are charged a partial day occurrence (PDO) for arriving late to work, returning late from lunch, leaving work for appointments, or leaving before the end of the shift. Employees who receive eight PDO's in 12 months receive a verbal warning, nine PDO's receive a written warning and more than nine PDO's in 12 months may be terminated.

7. In 2001, plaintiff's attendance record showed he took sick leave on January 2, 3, 18; February 15; March 5 and 6, for a total of six days. Plaintiff took vacation leave January 11; March 16; July 2, 3, 5; August 8, 22, 29, and October 8, 10, 17 and 25, for a total of twelve days.

8. Plaintiff had six PDO's (June 11, 21, 28; August 17; October 18 and November 13) and four FDO's (June 15; August 29; November 28 and December 7).

9. Plaintiff's absence on 18 January 2001 was primarily related to his compensable workers' compensation injury even though he also reported a problem with gastroenteritis.

10. Plaintiff contends that he was fired under false pretext shortly after receiving a favorable ruling from the Industrial Commission. However, this contention is not supported by the competent evidence presented at the hearing.

11. Plaintiff further testified that some of his occurrences should have been charged as compensatory leave. However, the competent evidence in the record establishes that plaintiff did not have any compensatory leave time noted on his timesheet. Therefore, he had no compensatory leave to be taken. Plaintiff's testimony on this issue is not accepted as credible.

12. Defendant-employer's attendance policy is uniformly applied to all employees. Plaintiff was well aware of the policy, as he had previously been reprimanded for his chronic absenteeism. Any other employee would have been terminated for such absenteeism under defendant's policy.

13. Plaintiff's disability relating to his compensable injury had ended by 7 December 2001. His treating physicians allowed him to lift up to 50 pounds on 22 February 2001. By 16 August 2001, plaintiff only complained to his doctor of muscular pain during his return examination and plaintiff was taking no medication. Dr. Wilson prescribed a muscle relaxer to be taken as needed and scheduled plaintiff to return in one year. Dr. Wilson rated plaintiff with a 15% permanent partial impairment to his back on 30 November 2001. At his return examination with Dr. Wilson on 1 August 2001, plaintiff reported some back pain without radiculopathy, but he was doing well.

14. Any inability to earn the same wages after 7 December 2001 is due to plaintiff's failure to comply with defendant-employer`s attendance policy.

*********** Base upon the foregoing Stipulations and Findings of Fact, the Full Commission makes the following:

CONCLUSIONS OF LAW 1. In order to qualify for compensation under the Workers' Compensation Act, a claimant must prove both the existence and the extent of disability. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982). "If an award is made by the Industrial Commission, payable during disability, there is a presumption that disability lasts until the employee returns to work. . . ." Watkins v. Central Motor Lines,279 N.C. 132, 181 S.E.2d 588 (1971). However, as stated in Commission Rule 404(1), this presumption of continued disability is rebuttable.Stone v. G. G. Builders, 346 N.C. 154, 484 S.E.2d 365 (1997). In the instant case, defendants have successfully rebutted the presumption of continuing disability by showing that suitable work has been available for the plaintiff since he returned to work on 11 December 2000 and that plaintiff was capable of performing the suitable employment available. Plaintiff continued to work for the employer for approximately one year; he was physically able to perform his job duties; by August 2001 he was only reporting some back pain with no numbness or radicular pain and he was not taking any medication for back pain; defendants provided suitable employment and plaintiff has demonstrated that he was capable of performing this work. Any inability to earn pre-injury wages on or after 10 December 2001 was due to misconduct by the plaintiff and was not due to the compensable injury.

2. Defendants may also rebut the presumption of disability by showing that "plaintiff was terminated from his employment (1) for misconduct or fault unrelated to the compensable injury and (2) for which a nondisabled employee would ordinarily have been terminated." Seagraves v. Austin Co.of Greensboro, 123 N.C. App. 228, 472 S.E.2d 587 (1996). If both prongs are found, this is termed a "constructive refusal" of suitable employment under N.C. Gen. Stat. § 97-32. The credible evidence clearly establishes that plaintiff's misconduct, his chronic absenteeism, is the basis for his dismissal. All employees are subject to the attendance policy and, moreover, due to the time sensitive nature of the airline industry, compliance with the policy is mandatory for employees, both nondisabled and those with injuries. Therefore, defendants have proven by greater weight of the evidence that plaintiff's termination was due to his chronic absenteeism, and this amounted to a constructive refusal to accept suitable employment.

3. Any contention by plaintiff that his unexcused absences were due to the workplace injury is not supported by his attendance record. Plaintiff's testimony to the contrary is not accepted as credible, particularly on the matter of compensatory time, and regarding absences for problems related to the compensable injuries, as the medical records and attendance records do not corroborate plaintiff's testimony.

*********** Based upon the foregoing Findings of Fact and Conclusions of Law, the Full Commission enters the following:

AWARD 1. Plaintiff's claim for additional temporary total disability compensation under the law, must be DENIED.

2. Each side shall pay its own costs.

ORDER Plaintiff's Form 18M Employee's Application for Additional Medical Compensation is approved. Plaintiff is entitled to continuing medical treatment for his compensable back injury to be paid for by defendants.

This the ___ day of September, 2003.

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/_____________ PAMELA T. YOUNG COMMISSIONER

S/_____________ THOMAS J. BOLCH COMMISSIONER

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Dissenting Opinion

The majority erred in finding that defendants have met their burden in proving that plaintiff was rightfully terminated for chronic absenteeism that amounted to a constructive refusal to accept suitable employment pursuant to Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228,472 S.E.2d 587 (1996). The two-part Seagraves test provides that defendants must show that plaintiff was terminated from his employment (1) for misconduct or fault unrelated to the compensable injury, and (2) for which a nondisabled employee would ordinarily have been terminated.

The evidence of record shows that defendant-empoloyer's attendance policy allowed plaintiff to accumulate a total of four "occurrences" for absences beyond, or not covered by permitted absences (i.e. sick leave, vacation leave, or family leave). In the present case, the majority found that plaintiff had exhausted all of his available vacation and sick days; however the evidence of record shows that defendant-employer required plaintiff to use a vacation day for what should have been an excused family leave absence pursuant to defendant-employer's own "time off from work" policy. That policy states that:

Up to five (5) excused absences each calendar year are allowed for the care of a member of the employee's family in the event of illness or to participate in school activities of the employee's children. This time off is excused, without pay and does not constitute an occurrence under the Attendance Policy.

Such absences are noted by defendant-employer as Family Leave, or "FL" on an employee's attendance records.

Plaintiff testified that on October 25, 2001, he missed work because his minor child was ill and needed to be taken to the doctor. Plaintiff notified his supervisor, Robbie Lee, by fax of his need to be out of work and requested that his absence be counted as personal, or family, leave without pay. The undersigned finds this absence satisfies the above requirements for family leave, pursuant to defendant-employer's own policy. When plaintiff later attempted to turn in his time card to Mr. Lee with the notation of family leave on October 25, 2001, Mr. Lee refused to accept or sign the time card unless plaintiff changed the excused family leave absence to vacation day. This vacation day was the last day of vacation leave that plaintiff had available to him. Defendants provided no evidence as to why plaintiff was not permitted to rightfully consider October 25, 2001, as an excused family leave absence. A review of plaintiff's 2001 employee attendance record shows that plaintiff used only four hours of family leave that year (on November 13, 2001), when defendant-employer's policy permitted up to five days of such leave.

Thus, the evidence of record clearly shows that plaintiff should have had one more day of vacation leave available to him at the time he was terminated, which would have resulted in one less occurrence for which he was terminated. The record does not reference the exact date on which Mr. Lee refused to accept plaintiff's time card and demanded that he change the permitted family leave absence on October 25, 2001, to a vacation day; however, it is of important note that such occurrence occurred contemporaneously with the October 24, 2001, filing of Deputy Commissioner Ledford's Opinion and Award, which found plaintiff's claim to be compensable. The undersigned finds this fact to be sufficient evidence of defendants' constructive efforts to create a situation in which plaintiff could be terminated for reasons seemingly unrelated to his workers' compensation claim.

The majority erred in finding that defendants have met their burden in proving that plaintiff was rightfully terminated for chronic absenteeism, when the evidence of record shows that plaintiff had one remaining day of vacation leave rightfully due him at the time he was terminated. Thus, defendants did not satisfy their burden under Seagraves to prove that a nondisabled employee would ordinarily have been terminated under the same facts. For these reasons, I respectfully dissent from the majority's Opinion and Award in this matter.

This 16th day of February 2004.

S/_____________ THOMAS J. BOLCH COMMISSIONER