North Carolina Lawyers Weekly
Harrell v. Edgecombe County Public Schools (Lawyers Weekly No. 12-16-0613, 25 pp.) (Douglas McCullough, J.) (Martha A. Geer, J., concurring in the result) Appealed from the Industrial Commission. N.C. App. Unpub. Full-text opinion.
Holding: Plaintiff showed that, after her injury, she did not earn the same wages she had earned before her injury. Such proof only showed partial disability, and plaintiff received the 300 weeks of temporary partial disability benefits to which she was entitled, plus permanent partial disability benefits.
We affirm the Industrial Commission’s finding that plaintiff was not totally disabled and had not returned to “make-work.”
Facts
Before her compensable back injury, plaintiff’s full-time schedule consisted of working about three hours a day as a school bus driver and four hours a day in the school cafeteria. After her Sept. 24, 2002 back injury, plaintiff was never able to return to her work as a bus driver, but she did return to work in the cafeteria as a cashier. She was also released to return to her previous work as a certified nurse’s assistant (CNA).
On July 17, 2006, back specialist Dr. Miller found that plaintiff had reached maximum medical improvement with a 15 percent permanent disability and with light duty restrictions. Defendants paid plaintiff 45 weeks of compensation for her permanent partial disability.
On Sept. 2, 2009, plaintiff filed a Form 33 request for a hearing, alleging that her cashier’s position was “make-work” and that she continued to be disabled. Defendants denied plaintiff’s claims and alleged that she had received temporary partial disability benefits for the 300 weeks to which she was entitled, as well as returning to a position within her restrictions.
The Industrial Commission found that plaintiff had failed to prove a continuing disability.
Disability
Where plaintiff’s injury was accepted as compensable pursuant to a Form 60, there is no presumption of a continuing disability. Plaintiff has the burden of proving that she is disabled and the extent of her alleged disability.
As the issue of medical treatment was never a contested issue, plaintiff’s reliance on Parsons v. Pantry, Inc., 126 N.C. App. 540, 485 S.E.2d 867
(1997), is misplaced.
Plaintiff proved that she was disabled under the fourth prong of Russell v. Lowes Product Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993): “the production of evidence that [s]he has obtained other employment at a wage less than that earned prior to the injury.”
However, the burden is on the employee to show that she is unable to earn the same wages she had earned before the injury, either in the same employment or in other employment.
Plaintiff did return to employment at a wage less than that earned prior to the injury; however, she failed to prove that she was incapable of making up the difference in wages in a different job. Defendants noted that she was allowed to return to her secondary position as a CNA, which could potentially make up any difference.
Moreover, we must focus on plaintiff’s earning capacity and not her physical impairment. She is not totally and permanently disabled, but merely partially disabled, so she could certainly find other suitable employment.
Plaintiff failed to prove that she suffered from a permanent disability. Additionally, she received her 300 weeks of temporary partial disability benefits, and defendants proved that she could obtain other work.
“Make-Work”
Plaintiff’s cashier position fell within the restrictions set by her doctors, and her duties remained substantially the same from pre-injury to post-injury. Her position is one that is available in the competitive job market, and defendants employ other able-bodied cashiers and part-time workers.
Furthermore, plaintiff’s doctors opined that plaintiff could return to her secondary position as a CNA, which could make up for some of her loss in wages. Thus, the Commission did not err in finding that plaintiff’s light-duty cashier position was suitable under G.S. § 97-32.1 and not “make-work.”
Affirmed.
Concurrence
(Geer, J.) A presumption of disability in favor of an employee arises only when (1) there is an executed Form 21, (2) there is an executed Form 26, or (3) there has been a prior disability award from the Industrial Commission. Here, defendant paid compensation pursuant to a Form 60. Further, there was no prior disability award from the Commission. Consequently, plaintiff was not entitled to a presumption of continuing disability.
Plaintiff claims that the Commission erred in concluding that she was not disabled when she met her burden under the fourth prong of the test in Russell. Plaintiff overlooks the fact that the Commission did find her disabled — it simply found her partially rather than totally disabled.
Under Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 345 S.E.2d 374 (1986), plaintiff bore the burden of showing not only that she was disabled, but also that she was totally disabled.
Plaintiff’s proof that her post-injury earnings were less than her pre-injury earnings was proof of a reduction in her earning capacity. It did not prove that she had no earning capacity and was entitled to total disability compensation.
Once plaintiff presented her evidence that she had a reduced earning capacity, the burden shifted to defendant to offer evidence that other jobs were available which plaintiff was capable of getting and which paid wages equivalent to her pre-injury wages. In this case, however, defendant chose to pay partial disability benefits rather than dispute plaintiff’s claim of partial disability.
Therefore, the burden remained on plaintiff to prove that she was in fact totally disabled and not just partially disabled.
Since this case does not involve a presumption of continuing disability and since plaintiff bore the burden of showing that she was totally disabled, she also bore the burden of showing that the cashier position was not a position generally available in the marketplace. However, plaintiff did not specifically address this issue or challenge the Commission’s finding that her position existed before her injury.
