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Written by: Lindsay Underwood
The most recent case to analyze futility has been issued by the North Carolina Court of Appeals. The case, Monroe v. MV Transportation, relies heavily on the Griffin v. Absolute Fire Control, Inc. case that came down last year to support its findings.
In Monroe, the claimant was in her late 40’s when she sustained her injury. She had a bachelor’s degree, but was working part time as a bus dispatcher and driver for the employer, earning $10.50 per hour. She had been receiving SSD benefits since 1994 for an unrelated medical condition (PTSD). On the date of injury, the claimant slipped while inspecting a bus, hit her left shin, and twisted her back and right knee. On November 7, 2016, she received restrictions of alternating between sitting and standing, and no lifting over 20 pounds.
The claimant’s claim was denied initially but was ultimately heard before Deputy Commissioner Lori A. Gaines and the claim was determined to be compensable. The claimant’s disability was also an issue for hearing, and the claimant introduced medical records that showed her work status as “unable to work secondary to dysfunction.” Her medical providers testified they would have recommended work restrictions. Deputy Commissioner Gaines found that the claimant was disabled from November 7 through November 14, 2016, when she was written out of work. Further, Deputy Commissioner Gaines held that the claimant had been disabled thereafter until she returned to work. The Full Commission disagreed. It was noted that the claimant was 51 years old, was a part-time dispatcher and bus driver earning $10.50 per hour and had been receiving SSD since 1994. The Full Commission found that the claimant had not produced sufficient evidence to demonstrate a post-injury job search, or that looking for employment would be futile. Thus, because she had not looked for work, she was not disabled and could not meet her burden.
The claimant appealed to the Court of Appeals and argued futility. Under Russell, a plaintiff can meet her burden of proving disability by showing she is capable of some work, but it would be futile to look for other work because of pre-existing conditions like age, unrelated conditions, or lack of education. In this case, The claimant argued that the Commission’s findings of fact were insufficient to support the conclusion that she failed to provide any evidence of futility. Specifically, she argued the record contained ample evidence of futility considering her restrictions and other factors unrelated to the injury. The Court in this case cited Griffin. In that case, the claimant was 49 years old with a ninth-grade education, prior work experience limited to construction, and permanent restrictions of no lifting greater than 20 pounds as a result of the work injury. The Court in Griffin found that the Commission’s conclusion that there was “no evidence” to support futility misapplied the law and they reversed for additional findings as to whether the claimant demonstrated futility since the only factual findings in the record were consistent with a conclusion of futility.
The Court felt this case is analogous to Griffin. The claimant was in her 50s at the time of the hearing, had been receiving SSD benefits unrelated to the work injury for several decades, and despite her bachelor’s degree, was working a part-time transportation job earning $10.50 per hour, and was restricted to no lifting over 20 pounds. The Commission still concluded the claimant had not otherwise presented evidence to establish disability and made no findings regarding the claimant’s medical records labeling her work status as “unable to work secondary to dysfunction.” The Court was essentially unable to reconcile the Commission’s findings “or lack thereof” to its conclusion that the claimant failed to present any evidence showing futility.
This case was ultimately vacated and remanded to the Full Commission for additional findings as to whether, under Russell, the evidence the claimant presented is sufficient to establish disability by futility. This case is yet another reminder of how the Court will treat disability arguments regarding futility. Based on this decision, as well as Griffin, it is a good idea for defendants to have labor market surveys, or other vocational assessments completed to support their defense that a claimant is not disabled as alleged. It is also important to note that this case does not eliminate other “futility” factors that need to be present like age, education level, and work experience, to demonstrate that returning to work is futile.