Falin v. Roberts Co. Field Services, Inc.

782 S.E.2d 75, 245 N.C. App. 144, 2016 N.C. App. LEXIS 136, 2016 WL 385757
CourtCourt of Appeals of North Carolina
DecidedFebruary 2, 2016
Docket15-565
StatusPublished
Cited by7 cases

This text of 782 S.E.2d 75 (Falin v. Roberts Co. Field Services, Inc.) 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
Falin v. Roberts Co. Field Services, Inc., 782 S.E.2d 75, 245 N.C. App. 144, 2016 N.C. App. LEXIS 136, 2016 WL 385757 (N.C. Ct. App. 2016).

Opinion

BRYANT, Judge.

*144 Where the Full Commission did not err in concluding that employment offered to plaintiff was not suitable pursuant to N.C. Gen.Stat. § 97-2(22), we affirm the Opinion and Award of the Full Commission.

In October of 2012, Franklin Falin, plaintiff, a resident of Kingsport, Tennessee, sought and accepted a construction job with The Roberts Company Field Services, Inc., defendant, specifically seeking work as an iron worker. The project plaintiff would work on was in Aurora, *145 North Carolina, over 415 miles from his home. On his application dated 15 October 2012, plaintiff indicated that he was "available for Out-of-Town jobs."

On 10 December 2012, plaintiff suffered a compensable injury to his left leg. When a large beam fell, it pinned plaintiff's leg against another beam, causing him to sustain a fracture to his left leg below the knee. Plaintiff's injury occurred at the job site in Aurora, North Carolina. That same day, Dr. Michael Kuhn performed surgery on plaintiff's leg. The surgery involved left tibial intermedullary nailing with two proximal and two distal locking screws. Plaintiff was discharged on 12 December 2012 and returned home to Kingsport, Tennessee for additional medical treatment. Defendants duly accepted liability.

On 19 December 2012, plaintiff visited Dr. Gregory Jeansonne of Associated Orthopaedics of Kingsport, Tennessee. Plaintiff reported significant pain as well as continued soft tissue swelling in his leg. He was told to keep his activity level to a minimum and was kept on non-weight-bearing status. As of 4 February 2013, Dr. Jeansonne allowed weight-bearing as tolerated in a CAM walker.

*77 On 4 March 2013, plaintiff reported aching pain in the left knee with extended periods of ambulation. He also reported aching pain at the fracture site. The CAM walker was discontinued. On 13 March 2013, Dr. Jeansonne recommended formal physical therapy for knee/ankle range of motion and strengthening. On 29 April 2013, plaintiff reported continued pain and swelling with increased activities such as physical therapy. On 24 May 2013, Dr. Jeansonne ordered a functional capacity evaluation ("FCE"). The FCE demonstrated that plaintiff could perform medium-level work.

In a letter dated 15 July 2013, Dr. Jeansonne noted that plaintiff had acceptable alignment at the fracture site. Dr. Jeansonne placed plaintiff at maximum medical improvement ("MMI") and assigned a nine percent disability rating to the lower extremity.

On 2 August 2013, Dr. Jeansonne reviewed defendant's job description for a Tool Clerk position. Dr. Jeansonne determined that plaintiff was "qualified to return to that job from an orthopedic standpoint." Although employed by defendant as an iron worker at the time of the injury, plaintiff's work history was diversified; he previously worked as a handyman, a machine operator, an assembly line worker, and a roofer.

On 20 August 2013, defendant offered plaintiff the Tool Clerk position at the Odfjell Project in Charleston, South Carolina. The position *146 paid $21.00 per hour, plus a $7.00 per hour per diem, returning plaintiff to his pre-injury average weekly wages. The Tool Clerk position was within plaintiff's work restrictions and required that an employee perform at the medium level. The project in Charleston was 338 miles from plaintiff's residence in Tennessee.

On 26 August 2013, plaintiff accepted a job at Southern Classic Auto Wash for minimum wage. Plaintiff later began working as a traffic controller for Professional Management Services Group ("PMS Group"). Both jobs were near plaintiff's home in Tennessee. On 27 August 2013, plaintiff rejected the Tool Clerk position.

On 6 September 2013, defendant filed a Form 24, Application to Terminate or Suspend Payment of Compensation. Defendant averred that plaintiff's refusal to accept suitable employment justified termination of disability benefits based on N.C. Gen.Stat. §§ 97-2(22) and 97-32. On 17 September 2013, plaintiff submitted his response to the Form 24, contending that the job offered to him was not within 50 miles of his residence.

The Industrial Commission declined to make a ruling on the Form 24 application; therefore, the matter went to hearing on the issue of whether plaintiff's disability benefits, known as Temporary Partial Disability ("TPD") pursuant to N.C. Gen.Stat. § 97-30, should be terminated based on plaintiff's refusal to accept suitable employment. On 27 May 2014, a Deputy Commissioner heard testimony from plaintiff and a representative of defendant, and on 30 July 2014, the Deputy Commissioner filed his Opinion and Award in favor of plaintiff.

Defendant appealed to the Full Commission. Following a hearing, two members of the Full Commission issued an Opinion and Award holding that the job offered to plaintiff was not suitable employment because it was outside the 50-mile radius from plaintiff's residence, and one member dissented with a separate opinion. The 2-1 decision of the Full Commission was handed down on 24 March 2015. Defendant appeals.

_________________________

On appeal, defendant argues the Full Commission erred in its Conclusions of Law Nos. 3, 5, and 7, which are stated as follows:

3. Because the North Charleston tool clerk job was located 338 miles from plaintiff's permanent residence in Kingsport, it did not constitute "suitable employment" for plaintiff. The Commission concludes that a plain reading of N.C. Gen.Stat. § 97-2(22) compels this conclusion *147 as the North Charleston job was located 338 miles from plaintiff's residence, far in excess of the 50-mile radius statutory requirement. However, even if distance-from-residence is but one factor to be considered in the analysis, the sheer distance involved here still overwhelms the other *78 factors and as such the tool clerk job does not constitute "suitable employment." Id.
...
5. Thus, defendant may not terminate payment of TPD compensation to plaintiff at this time as he has not unjustifiably refused suitable employment. N.C. Gen.Stat. § 97-32.
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7. The Commission concludes that one of the 2011 amendments that was designed to encourage claimants to return to work, that is, the enhancement of TPD compensation provision of N.C. Gen.Stat. § 97-30, fits neatly into the circumstances of this claim. As an iron worker, plaintiff made very good wages for someone with a limited formal education, but the compensable injury he sustained while working for defendant consigned plaintiff with work limitations that now prevent him the opportunity to make those wages as an iron worker anywhere for any employer. Ongoing TPD compensation to plaintiff recognizes and compensates for that reality. N.C. Gen.Stat. § 97-30.

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Bluebook (online)
782 S.E.2d 75, 245 N.C. App. 144, 2016 N.C. App. LEXIS 136, 2016 WL 385757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falin-v-roberts-co-field-services-inc-ncctapp-2016.