Baker v. Sam's Club

589 S.E.2d 387, 161 N.C. App. 712, 2003 N.C. App. LEXIS 2255
CourtCourt of Appeals of North Carolina
DecidedDecember 16, 2003
DocketNo. COA03-117
StatusPublished
Cited by1 cases

This text of 589 S.E.2d 387 (Baker v. Sam's Club) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Sam's Club, 589 S.E.2d 387, 161 N.C. App. 712, 2003 N.C. App. LEXIS 2255 (N.C. Ct. App. 2003).

Opinion

HUDSON, Judge.

Plaintiff Judi Baker (“plaintiff’) suffered knee, arm, shoulder and neck injuries when she slipped and fell while at work. Plaintiffs employer, Sam’s Club (“defendant”), paid disability compensation and medical treatment costs related to the knee injury, but denied compensability for the arm, shoulder and neck problems. Plaintiff sought a hearing. Deputy Commissioner Wanda Blanche Taylor heard plaintiff’s case in Wilmington on 31 March 1998, and entered her opinion and award 1 July 1999, awarding compensation only for permanent partial disability related to her knee injury. Plaintiff appealed the Deputy Commissioner’s decision to the Full Commission, which reviewed her case 29 February 2000. On 20 September 2002, the Full Commission filed an opinion and award, again awarding plaintiff compensation only for the permanent partial disability rating related to her knee injury, pursuant to N.C. Gen. Stat. § 97-31 (1995). Plaintiff appeals, alleging error in the Commission’s failure to make findings about the suitability of plaintiff’s job following her injury. For the reasons discussed below, we reverse in part and remand to the Full Commission for findings about the suitability of plaintiff’s post-injury position, and for appropriate conclusions based on those findings.

The findings of the Commission indicate that plaintiff was employed by defendant as an outside marketing representative earning an average weekly wage of $428.00. On 24 May 1996, in the course and scope of her employment, plaintiff slipped and fell while calling on Food Lion, a customer of defendant. Embarrassed by her fall, plaintiff attempted to complete the call, and then reported the accident to her supervisor immediately on returning from the field. Defendants accepted plaintiff’s claim as a compensable injury by accident to her knee.

Plaintiff saw doctors at Cape Fear Occupational Health Services with anterior knee pain and reports of neck, arm and shoulder pain. Plaintiff eventually underwent knee surgeries on 11 November 1996 and 25 April 1997, and remained out of work until 7 September 1997. Plaintiff’s physician released her to return to work with restrictions and recommended a primarily sedentary job without kneeling, stooping, squatting or bending, limited stair climbing and a lifting limit of twenty pounds.

Plaintiff returned to work with defendant 7 September 1997, taking a sit-down position at the Credit Applications desk. Plaintiff was able to perform this job, but the position was eliminated nationwide [714]*714after 25 December 1997. Defendant then transferred plaintiff to a demonstrator job, preparing food products for customers to taste while in the store. The position required plaintiff to load the necessary food and equipment onto a cart, push the cart to the demonstration location, prepare the food, serve it to customers, clean up and break down the demonstration station afterwards, and take out the accumulated trash.

In January 1998, while working as a demonstrator, plaintiff’s knee collapsed as she stooped to place food into a microwave. Defendant then moved plaintiff to a non-cooking position, albeit one which still required standing, reaching and lifting. The Commission made the following finding:

11. The plaintiff testified that her job as a non-cooking demonstrator exceeded her physical limitations and light duty restriction. However, the plaintiff was offered help by the preparation people to assist her in tearing down and setting up for her demonstrations. There are generally two prep people available. The plaintiff declined this help indicating that she did not want to be a strain on the team and that if a 60-year-old prep person could do it, she could do it.

Testimony also showed that plaintiff felt embarrassed about her physical limitations and about being paid $11.40 per hour, when other demonstrators earned only $8.00 to $9.00 per hour. Plaintiff discussed her new position with her physician, who re-emphasized that she needed a sedentary job. Defendant’s sales manager agreed that the job description presented for approval by plaintiff’s physician was not accurate because it did not indicate that the job required lifting, squatting, kneeling and prolonged standing.

Following continued complaints of pain in her knee, arm, shoulder and neck, plaintiff’s physician advised her that she would either need to quit work or work in pain. Plaintiff continued to be seen by physicians for the injuries to her knee, receiving a permanent partial impairment rating of seven percent to her left leg. Plaintiff also continued treatment for injuries to her right arm and shoulder, eventually being diagnosed with carpal tunnel and impingement syndromes. As a result of those injuries, plaintiff’s physician removed her from work until they could be resolved surgically. Plaintiff remains out of work, contending that the demonstrator job assigned to her by defendants was not suitable given her restrictions.

[715]*715Plaintiff first contends that the Industrial Commission erred in failing to make findings of fact on the issue of suitability of the jobs to which she returned on 7 September 1997 following her injury. Because the Commission’s opinion and award fails to make any findings about the suitability of plaintiffs post-injury jobs, as required for its determination, we remand for findings on that issue.

Prior to the hearing before the deputy commissioner, the parties stipulated that one of the issues before the Commission was whether plaintiff is “entitled to payment of temporary partial disability from September 9,1997 to the present and continuing.” Under the Workers’ Compensation Act, disability is defined by a diminished capacity to earn wages, not by physical infirmity alone. N.C. Gen. Stat. § 97-2(9) (1995). Findings about the plaintiff’s ability to earn wages in the competitive job market are necessary for the Commission to determine her earning capacity which, in turn, is necessary for a determination of entitlement to temporary partial disability under N.C. Gen. Stat. § 97-30. Saums v. Raleigh Community Hosp., 346 N.C. 760, 765, 487 S.E.2d 746, 750 (1997). In order to determine whether the benefits for the seven percent rating are the more munificent remedy, the Commission must address the plaintiff’s loss of wage-earning capacity, if any. See Knight v. Wal-Mart, 149 N.C. App. 1, 562 S.E.2d 434 (2002), affirmed per curiam, 357 N.C. 54, 577 S.E.2d 620 (2003).

“[A]n injured employee’s earning capacity must be measured not by the largesse of a particular employer, but rather by the employee’s own ability to compete in the labor market.” Peoples v. Cone Mills Corp., 316 N.C. 426, 437, 342 S.E.2d 798, 805 (1986). Thus, “the fact that an employee is capable of performing employment tendered by the employer is not, as a matter of law, an indication of plaintiff’s ability to earn wages.” Saums, 346 N.C. at 764, 487 S.E.2d at 750. As our Supreme Court has explained:

Proffered employment would not accurately reflect earning capacity if other employers would not hire the employee with the employee’s limitations at a comparable wage level. The same is true if the proffered employment is so modified because of the employee’s limitations that it is not ordinarily available in the competitive job market.

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589 S.E.2d 387, 161 N.C. App. 712, 2003 N.C. App. LEXIS 2255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-sams-club-ncctapp-2003.