Holding: Plaintiff produced evidence that it would be futile for him to seek work. Since defendant’s vocational expert did not take into account that plaintiff is a 55-year-old manual laborer with a limited education and lifting restrictions, defendant has failed to show that there are jobs that plaintiff could get.
We remand the Industrial Commission’s denial of benefits for further proceedings.
After suffering a back injury at work, plaintiff sought temporary total disability benefits.
Plaintiff must prove disability by demonstrating, “(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual’s incapacity to earn was caused by plaintiff’s injury.” Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982). One way for plaintiff to prove the first two Hilliard prongs is by producing “evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment. . . .” Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454
Although the Commission noted, “Plaintiff has failed to show through expert medical or vocational evidence that it would be futile for him to seek employment,” the employee is not required to produce expert testimony regarding futility.
Plaintiff was a 55-year-old man from Mexico who attended school in Mexico until the age of 12. He can speak English but cannot read it as well as he speaks it. Plaintiff’s work experience can be described as manual labor, but he is now under permanent work restrictions of no lifting over 40 pounds.
Due to plaintiff’s age, lack of education, lack of vocational training, limited fluency in written English, and lifting restrictions, we conclude plaintiff has met his burden of production by demonstrating that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment.
Therefore, the burden shifted to defendant to show that suitable jobs are available and that plaintiff was capable of obtaining a suitable job taking into account both physical and vocational limitations. Defendant presented evidence from Michael Stickney, a vocational expert, to show that suitable jobs are available to plaintiff.
Stickney testified that, when he was preparing labor market surveys, he was not aware of plaintiff’s education level or how well plaintiff comprehended written English or even Spanish, though Stickney agreed education and ability to read would “be relevant to a labor market survey” for plaintiff. Stickney was also unaware, though he noted it could have been relevant to his search, whether plaintiff “can operate a computer.”
Stickney was unaware of the educational requirements for most of the jobs he identified or if plaintiff qualified for them. Stickney was also generally unaware of any lifting requirements in the manual labor positions he listed.
Stickney’s testimony as to available positions did not address plaintiff’s particular status as a 55 year-old who only attended school until the age of 12, is not fluent in written English, and whose work experience is in manual labor but now has lifting restrictions. Stickney failed to identify suitable jobs for plaintiff that he is capable of performing considering, among other things, his physical limitations.
To rebut plaintiff’s evidence, defendant’s burden is to show not only that suitable jobs are available, but also that the plaintiff is capable of getting one, taking into account both physical and vocational limitations. Stickney’s testimony as to the availability of particular jobs may be credible, but it has no relevance to the employment opportunities for a person who does not have the minimum qualifications for the jobs. Stickney simply failed to identify relevant employment opportunities for a person with plaintiff’s qualifications and lifting limitations, so his testimony cannot be used to determine a disputed fact or component of plaintiff’s claim.
The Commission erred in relying on Stickney’s testimony. We remand for the Commission to determine whether plaintiff’s incapacity to earn was caused by his injury.
Adame v. Aerotek (Lawyers Weekly No. 012-026-18, 14 pp.) (Donna Stroud, J.) Appealed from the Industrial Commission. Charles Mast for plaintiff; Kristine Prati for defendant. N.C. App. Unpub.