Workers’ Compensation – Total Disability – Knee Injury – Unrelated Cancer – Surgery Delay – Apportionment – Suitable Employment – Estoppel

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Shupe v. City of Charlotte. (Lawyers Weekly No. 10-16-0637, 13 pp.) (Sanford L. Steelman Jr., J.) Appealed from the Industrial Commission. N.C. App. Unpub.

Holding: Plaintiff’s compensable knee injury required surgery, but, in order to undergo surgery, she would have needed to stop chemotherapy for her unrelated cancer. The combination of plaintiff’s compensable knee injury and her non-compensable cancer rendered her totally disabled.

We affirm the Industrial Commission’s award of temporary total disability benefits.

Facts

Plaintiff suffered a knee injury while working as a police officer for the defendant-city. She underwent surgery, returned to light duty, and began physical therapy.

Plaintiff’s knee did not respond well to physical therapy, and her orthopedic surgeon recommended a second operation. Around the time the Industrial Commission approved the second operation, plaintiff was diagnosed with cancer of the liver and pancreas. Her oncologist recommended that she not have surgery because it would require her to discontinue chemo- and immunotherapy, which would pose risks in controlling her cancer. Plaintiff’s orthopedic surgeon agreed.

Plaintiff requested a hearing on her permanent partial disability rating, but she moved to withdraw the request because her oncologist believed her condition could improve, allowing her to have knee surgery in the future. The commission allowed the withdrawal motion.

Plaintiff then requested a hearing on total disability compensation. The commission awarded her temporary total disability.

Analysis

The commission found that (1) plaintiff’s cancer prevented her from undergoing knee surgery, so she remained unable to return to regular duty; (2) her knee had not reached maximum medical improvement; and (3) plaintiff’s non-work-related cancer conjoined with and aggravated her work-related knee injury to preclude surgical repair of her knee, both conditions combining to preclude plaintiff’s employment in even light-duty positions.

The commission’s findings establish that plaintiff’s non-work-related injury combined with her compensable work-related injury to prevent surgery. Where a claimant is rendered totally unable to earn wages, partially as a result of a compensable injury and partially as a result of a non-work-related medical condition, the claimant is entitled to an award for total disability under G.S. § 97-29.

Defendant seeks apportionment of the award. Apportionment has been allowed when only a portion of an employee’s total disability is caused by the compensable injury and another portion is caused by a non-work-related injury. However, apportionment is not proper when the evidence before the commission renders an attempt at apportionment speculative, or when there is no evidence attributing percentages to the employee’s total incapacity of her compensable injury and to her non-compensable injury.

In this case, no evidence was presented attributing any percentage of plaintiff’s total incapacity solely to her compensable work-related injury. Though plaintiff’s first orthopedic surgeon assigned plaintiff a 10 percent permanent partial disability rating and her second orthopedic surgeon assigned plaintiff a 25 percent permanent partial disability rating, these ratings do not address the question of what percentage of plaintiff’s total disability to earn wages was attributable to her compensable work-related injury and what percentage was attributable to her non-work-related injury.

Apportionment would be speculative, and plaintiff is entitled to full compensation for her temporary total disability.

The commission found as fact that the light-duty administrative position in which plaintiff was working was very similar to the position of non-sworn police technician, which pays $23,000 less than plaintiff’s salary as a sworn police officer. As such, the light-duty job was not suitable and not indicative of plaintiff’s wage-earning capacity.

The difference in pay between what plaintiff was earning as a sworn police officer and what she would earn if she were permanently hired in the light-duty job was about $23,000. This is a significant difference and is not a comparable wage; thus, it is not truly indicative of any wage earning capacity plaintiff may have had.

The disparity between pre-injury and post-injury wages is one factor which may be considered in determining the suitability of post-injury employment. The rationale behind the competitive measure of earning capacity is apparent. If an employee has no ability to earn wages competitively, the employee will be left with no income should the employee’s job be terminated.

The commission’s finding that the light-duty assignment was not suitable employment is supported by competent evidence. Plaintiff’s temporary, light-duty assignment was not indicative of her wage-earning capacity.

Finally, plaintiff’s prior request for a hearing on permanent partial disability benefits did not estop her from claiming temporary total disability benefits. Plaintiff withdrew her request for a hearing on permanent partial disability before the commission considered the matter or made a determination on that issue. The doctrine of estoppel is only applicable if there has been an earlier adjudication of an issue of fact or law.

Affirmed.