State News : North Carolina

NC Risk Handling Hint - Futile Job Search

TheThompson Court reinforces the Commission’s discretion to weigh evidence, draw inferences from the evidence and paraphrase testimony. Defendants challenged the Commission’s factual conclusions regarding Thompson’s vocational and educational history, but the Court found that while Thompson may not have used the ‘precise’ words in the Full Commission’s decision, the Commission’s findings ‘paraphrased’ Thompson’s testimony and that the Commission drew reasonable inferences from his testimony. The Court continues to clarify that it will not disturb the Commission’s credibility determinations on appeal.

Kelvin D. Thompson filed a claim for workers’ compensation benefits on October 21, 2008. One year later, the Deputy Commissioner entered an Opinion and Award concluding that Thompson had suffered a compensable back injury and awarding him temporary total disability benefits, payment of past and future medicalexpenses, and attorney’s fees. On appeal by Defendants, the Full Commission adopted the Deputy Commissioner’s Opinion and Award with minor modifications. In its Opinion and Award, the Full Commission incorporated language from both the first and third prongs ofRussell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993), to justify its determination that Thompson was disabled (“[G]iven plaintiff’s current physical andvocational limitations, plaintiff is incapable of work in any employment”). Defendants appealed, and the North Carolina Court of Appeals remanded the case for clarification of the basis for the Full Commission’s conclusion that Thompson was disabled.

The Full Commission entered a new Opinion and Award on remand, finding that Thompson had “met his initial burden to show that he was totally disabled . . . by showing that a job search would be futile in light of his physical and vocational limitations.” The Full Commission further concluded that “[D]efendants have not shown that suitable jobs are available for plaintiff and that plaintiff is capable of obtaining a suitable job, taking into account plaintiff’s physical and vocational limitations.” Defendants appealed again to the Court of Appeals.

On November 6, 2012, inThompson v. Carolina Cabinet Co.,the Court of Appeals first considered Defendants’ argument that theFull Commission’s conclusion of law that Thompson was disabled failed to adequately identifywhich prong of Russell the Commissionapplied. In rejecting this argument, the Court noted that although the Full Commission did not expressly state which prong ofRussell it applied, it was apparent from the Commission’s findings that it applied the third prong. In order to support a conclusion of disability, the Commission must find that Thompson was incapable of earning pre-injury wages in the same or any other employment, and that the incapacity to earn pre-injury wages was caused by his injury.Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). Pursuant toRussell, an employee may meet his initial burden of production on this issue by producing one of the following: (1) medical evidence that he is physically or mentally, as a result of the work-related injury, incapable of work in any employment; (2) evidence that he is capable of some work, but that he has, after a reasonable effort, been unsuccessful in his efforts to obtain employment; (3) evidence that he is capable of some work, but that it would be futile because of pre-existing conditions, such as age, inexperience, or lack of education, to seek employment; or (4) evidence that he has obtained other employment at wages less than his pre-injury wages. Russell, 108 N.C. App. at 766, 425 S.E.2d at 457.

Defendants pointed to theCommission’s reliance on Thompson’s“physical” and “vocational” limitations, arguing the Commission improperly merged the first and third prongs ofRussell. The Court concluded, however, that any determination under the third prong necessarily required the Commission to consider both types of limitations, since a job search would be limited only to those jobs consistent with Thompson’s physical restrictions. The Court further noted that the Commission was not required to state specifically that Thompson was “capable of some work,” because a finding of futility presumes that an employee is capable of some work physically. According to the Court, there would be no need for a finding that a job search would be futile if an employee was in fact incapable of working at all under the first prong ofRussell.

The Court also rejected Defendants’ argument that the Full Commission erred in determining that Thompson meet his burden of showing disability under the third prong of Russell. With respect to vocational considerations, the Commission pointed out that Thompson was, at the time of itsdecision, 45 years-old with a high school education and limited work experience. With respect to physical limitations, the Commission noted that Thompson was restricted to lifting no more than 15 pounds and working no longer than nine hours per day. In addition, he was required to avoid repetitive bending, lifting, and twisting, and had been experiencing steady, intense pain. The Court held that these findings were supported by competent evidence and were sufficient to support the Commission’s conclusion that it would be futile for Thompson to search for a job consistent with his physical restrictions. The Court also pointed out that once an employee meets his initial burden of production underRussell, the burden of production shifts to the employer to show that suitable jobs are available and that the employee is capable of obtaining a suitable job taking into account his physical and vocational limitations and that Defendants made no argument that the Full Commission erred in concluding that they failed to meet this burden.