Lowery v. Duke University

609 S.E.2d 780, 167 N.C. App. 714, 2005 N.C. App. LEXIS 7
CourtCourt of Appeals of North Carolina
DecidedJanuary 4, 2005
DocketNo. COA04-62.
StatusPublished
Cited by3 cases

This text of 609 S.E.2d 780 (Lowery v. Duke University) 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
Lowery v. Duke University, 609 S.E.2d 780, 167 N.C. App. 714, 2005 N.C. App. LEXIS 7 (N.C. Ct. App. 2005).

Opinion

*781MARTIN, Chief Judge.

Defendant Duke University, self-insured, appeals from an opinion and award entered 6 October 2003 by the North Carolina Industrial Commission (hereinafter "Commission") awarding plaintiff benefits.

Defendant contends that the Commission erred when it reversed the opinion and award of the Deputy Commissioner and found that plaintiff did not constructively refuse suitable employment. Specifically, defendant asks this Court to find that there is no competent evidence to support the Commission's finding of fact that defendant-employer "failed to offer plaintiff a job that was within his restrictions and that he was physically able to perform." After careful consideration, we affirm the Industrial Commission.

Evidence before the Industrial Commission tended to show that plaintiff began working as a utility worker at Duke University in or around 1969. At the time of his injury he was assigned to work at Carr Gymnasium, where his job duties included mopping restrooms, locker rooms and hallways; vacuuming; removing trash; wiping benches; and cleaning lobbies, equipment rooms, the gym floor, a classroom, and a stairwell and landing. Plaintiff used dust mops, wet mops, brooms, a wet vac, a vacuum cleaner, cleaning chemicals and dust cloths.

Plaintiff suffers from poorly controlled Type II diabetes, has had complications from epilepsy in the past, and takes medication for depression. Plaintiff suffered a right knee injury as a child which resulted in his right leg being shorter than his left leg.

On 24 November 1999, plaintiff fell down some stairs while in the course of his employment and sustained an acute right quadriceps tendon rupture. Defendant accepted plaintiff's right knee injury as compensable and paid temporary total disability compensation pursuant to a Form 60, Employer's Admission of Employee's Right to Compensation, dated 28 April 2000.

On 6 December 1999, plaintiff underwent a quadriceps tendon repair procedure performed by orthopedic surgeon Lawrence Higgins, M.D. Following his surgery, plaintiff began using a cane due to right leg weakness to ensure he did not fall. On 11 April 2000, Dr. Higgins released plaintiff to return to light duty work for four weeks with a transition to full duty thereafter and continued physical therapy. Plaintiff returned to work with restrictions on 1 May 2000. Defendant-employer did not allow him to use his cane while working. Plaintiff attempted to work without his cane, but was evidently unsuccessful.

Dr. Carol Epling of Duke University Employee Occupational Health and Wellness Services took plaintiff out of work while he underwent additional physical and rehabilitation therapy. Dr. Epling referred plaintiff to Southwind Spine Rehabilitation Center to participate in a work transitioning program that plaintiff began on or about 23 May 2000. After completing physical therapy, plaintiff *782continued to suffer from chronic pain in his right knee and weakness of the right leg. There was also a significant atrophy of the right quadriceps.

After performing a functional capacity examination on 28 September 2000, Dr. Epling released plaintiff to return to modified housekeeping work on a trial basis with restrictions, including not kneeling or squatting and not lifting or pulling more than twenty pounds without assistance and no more than forty pounds under any circumstances.

Dr. Epling further noted that plaintiff "[m]ay have [sic] cane with him to work but not to use cane during work activities within restrictions previously written." She testified that "[i]f he did activities [compatible with] this very lengthy list of activities restrictions . . . his actual activities at the job would be quite restricted within these recommendations." She also opined that if plaintiff "didn't have a Duke job, then it would be difficult to find a job that would fit within those limitations." Dr. Epling was aware that plaintiff suffered fatigue, headaches, "and some other systemic symptoms that he attributed to poor glucose control." However, she admitted that when assessing plaintiff's functional capacity and determining work restrictions, she had failed to consider his diabetic condition. "My role in this clinic," she stated, "is to assess the injury status and to write relevant indicated activity limitations for that injury." (emphasis added).

Dr. Richard F. Bruch, an orthopedic surgeon, examined plaintiff on 27 April 2001 in connection with plaintiff's application for Social Security Disability benefits. It was Dr. Bruch's opinion that, some eighteen months after his surgery, plaintiff retained a fifteen percent (15%) permanent partial impairment rating to his lower right leg, and an additional five percent (5%) permanent partial impairment rating to the leg due to preexisting weakness attributable to the old injury. Dr. Bruch also opined, taking into consideration plaintiff's medical records, X-rays and his own physical examination of plaintiff, that he was more likely to fall than someone who had normal quadriceps muscle function and tone, and that plaintiff's use of a cane "was appropriate, either at home, out in public, or in the workplace."

"The standard of review for an appeal from an opinion and award of the Industrial Commission is limited to a determination of (1) whether the Commission's findings of fact are supported by any competent evidence in the record; and (2) whether the Commission's findings justify its conclusions of law." Goff v. Foster Forbes Glass Div., 140 N.C.App. 130, 132-33, 535 S.E.2d 602, 604 (2000). If there is competent evidence to support the findings, they are conclusive on appeal even though there is evidence to support contrary findings. Hedrick v. PPG Industries, 126 N.C.App. 354, 357, 484 S.E.2d 853, 856, disc. review denied, 346 N.C. 546, 488 S.E.2d 801 (1997). Furthermore, the evidence tending to support plaintiff's claim must be taken "in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence." Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998). However, "findings of fact by the Commission may be set aside on appeal when there is a complete lack of competent evidence to support them." Young v. Hickory Bus. Furn.,

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Bluebook (online)
609 S.E.2d 780, 167 N.C. App. 714, 2005 N.C. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowery-v-duke-university-ncctapp-2005.