McRae v. Toastmaster, Inc.

579 S.E.2d 913, 158 N.C. App. 70, 2003 N.C. App. LEXIS 951
CourtCourt of Appeals of North Carolina
DecidedMay 20, 2003
DocketNo. COA02-1072
StatusPublished
Cited by1 cases

This text of 579 S.E.2d 913 (McRae v. Toastmaster, 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
McRae v. Toastmaster, Inc., 579 S.E.2d 913, 158 N.C. App. 70, 2003 N.C. App. LEXIS 951 (N.C. Ct. App. 2003).

Opinions

TYSON, Judge.

Alberta McRae (“plaintiff’) appealed from the opinion and award of the North Carolina Industrial Commission (“Commission”) ordering Toastmaster, Inc. (“employer”) through its servicing agent Corporate Claims Management to pay plaintiff $166.67 per week for 16 weeks, medical expenses, and plaintiff’s attorney fees, expert fee and costs. Employer cross-appeals. We affirm.

I. Background

In October 1996, plaintiff commenced work for employer as an assembler. During her first six months on the job, she peeled Uniform Product Code labels off of a roll and placed them onto boxes traveling on a conveyor. Employer transferred plaintiff to “dialing.” Dialing required plaintiff to insert the movement into the back of a clock, turn the clock over, and install the hour and minute hands on the front of the clock. The production rate for “dialing” was one hundred twenty-five clocks per hour.

In 1997, plaintiff experienced pain and numbness in her right hand. In January 1998, plaintiff visited the plant nurse, who referred her to Occupational Health at Scotland Memorial Hospital. Plaintiff [72]*72was treated and restricted to light-duty work until February 17. Plaintiffs symptoms persisted and she obtained permission to see Dr. Brenner, an orthopaedic surgeon.

In June of 1998, plaintiff was referred to Dr. Brenner for the pain in her right hand. Plaintiff was diagnosed with carpal tunnel syndrome and was injected with medication. Plaintiff was restricted to light work, and her employer provided plaintiff other tasks in clock assembly. On 21 July 1998, plaintiff returned to Dr. Brenner and reported some improvement in her hand. Plaintiff was allowed to increase her activities but ordered not to return to dialing. On 24 September 1998, plaintiff returned to Dr. Brenner with further problems in both hands. Plaintiffs left wrist was injected, and nerve conduction studies showed plaintiff had bilateral carpal tunnel syndrome.

Dr. Brenner performed surgery on plaintiffs right carpal tunnel on 26 October 1998 and on plaintiffs left carpal tunnel on 30 November 1998. Dr. Brenner released plaintiff to light-duty work on 21 December 1998 and advised that plaintiff could return to full duty on an “as-tolerated” basis. Employer provided light-duty work to plaintiff for some time, but returned her to the dialing position. On 13 April 1999, plaintiff returned to Dr. Brenner because her hands were swelling and hurting while dialing. Dr. Brenner advised plaintiff to avoid dialing permanently.

Plaintiff returned to her original position as a UPC labeler. Plaintiff was required to place a sticker on one out of four boxes, for a total of 1,000 boxes a day. Plaintiff failed to label the boxes as required. Plaintiff was reprimanded and did not explain why she missed the boxes. Plaintiff testified that she experienced some difficulty with her hands while performing the labeling job.

On 5 May 1999, plaintiff was terminated from her job with defendant-employer. Employer admitted liability for benefits for plaintiff’s carpal tunnel syndrome and paid compensation to plaintiff for temporary total disability while plaintiff was out of work for the surgery and the plaintiffs medical bills. Employer has not paid plaintiff further sums since her termination.

The Commission found that plaintiffs termination was a direct result of poor job performance and that she constructively refused suitable employment offered by her employer after the surgery. The Commission found the labeling job to be suitable for plaintiff. Plaintiff presented no evidence of disability as a result of her injury. [73]*73The Commission found that plaintiff was not entitled to disability benefits after termination of her employment. Plaintiff had an average weekly wage of $250.00, according to the Form 21. This wage yielded plaintiff a compensation rate of $166.67 per week for 16 weeks based upon an impairment rating of 4% to each hand. Employer was to provide all medical compensation arising from the injury as well as. plaintiff’s attorney fees and costs. Commissioner Thomas Bolch dissented from the award of the Commission because he found as fact that plaintiffs inability to perform the labeling job was caused by her occupational disease of carpal tunnel syndrome. Plaintiff appeals.

II. Issues

The issues are (1) whether the Commission erred in relying upon Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996) in holding that plaintiff “was terminated for misconduct and she thereby constructively refused suitable employment” and (2) whether the Commission erred in determining plaintiffs weekly wage and compensation rate.

HI. Standard of Review

“[A]ppellate courts reviewing Commission decisions are limited to reviewing whether any competent evidence supports the Commission’s findings of fact and whether the findings of fact support the Commission’s conclusions of law.” Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Conclusions of law are reviewed de novo. Grantham v. R.G. Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. review denied, 347 N.C. 671, 500 S.E.2d 86 (1998).

IV. Seagraves v. Austin Co. of Greensboro

Plaintiff contends that the Commission erred in applying Seagraves to the facts at bar. The Commission found as fact that the UPC labeler position was a suitable job for the plaintiff. The Commission based this finding upon evidence that plaintiff had performed that job satisfactorily prior to working as a dialer and that plaintiff did not seek mental or physical help in undertaking this job after the surgery. Competent evidence supports the Commission’s finding that the labeler position was suitable.

The Commission further found that plaintiff was capable of labeling and that plaintiff’s failure to perform the labeler position constituted a failure to accept a suitable position offered by the employer. [74]*74The Commission concluded under the law of Seagraves that plaintiffs misconduct in failing to perform the task was a constructive refusal of employment.

Competent evidence in the record supports the Commission’s finding that plaintiff was capable to perform as a labeler. The issue becomes whether plaintiff’s poor performance is misconduct under Seagraves.

To determine whether an employee’s misconduct amounts to a constructive refusal to perform work, justifying termination under N.C.G.S. § 97-32, this Court in Seagraves stated

the employer must first show that the employee was terminated for misconduct or fault, unrelated to the compensable injury, for which a nondisabled employee would ordinarily have been terminated.

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Related

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600 S.E.2d 501 (Court of Appeals of North Carolina, 2004)

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Bluebook (online)
579 S.E.2d 913, 158 N.C. App. 70, 2003 N.C. App. LEXIS 951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcrae-v-toastmaster-inc-ncctapp-2003.