Morgan v. Interim Healthcare (Lawyers Weekly No. 14-16-0782, 20 pp.) (Wanda Bryant, J.) Appealed from the Industrial Commission. N.C. App. Unpub.
Holding: The clerical position that defendant offered to plaintiff was within her medical restrictions; in fact, she performed the duties of the position for four hours a day after her compensable back injury. Furthermore, defendant showed that the proffered full-time position was not “make work” via its CEO’s testimony that the position was one defendant normally has in the office and there was an open full-time position: “What I did at the time was I had two part-time people who worked…. We have peak times when things are busy. So what we did do at that time is extended the hours of the weekend people, and extended [a part-time person’s hours]. But we still had a gap where we needed somebody to fill in for those, because we had some overtime involved. So we – [plaintiff] filled that role.”
We affirm the Industrial Commission’s ruling that plaintiff is not entitled to ongoing disability benefits.
Although plaintiff accepted the clerical position, she failed to show up for work and – two days later – she got her doctor’s nurse to write her a retroactive out-of-work note without any accompanying evaluation. We affirm the Commission’s conclusion that plaintiff unjustifiably refused suitable employment.
Defendant’s employees sign a policy acknowledging that termination of employment is immediate if an employee fails to show up for work without notice, so plaintiff knew that her failure to report to work without notifying defendant would result in her termination. Plaintiff’s failure to notify defendant about her need to be absent from work was not related to her compensable injury. Thus, we affirm the Commission’s conclusion that plaintiff unjustifiably refused suitable work.
Finally, plaintiff failed to show that her inability to find or hold other employment at a similar wage is due to her work-related disability. Plaintiff holds several clerical certifications and has years of clerical experience. After her on-the-job injury, she worked in a light-duty capacity in defendant’s office performing clerical duties. Moreover, she has not looked for work since her termination by defendant. We affirm the Commission’s conclusion that plaintiff failed to show that her inability to find employment was due to her work-related disability.