Keeton v Circle K
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NO. COA11-632 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 ULDARICA M. KEETON, Employee, Plaintiff, v. N.C. Industrial Commission I.C. No. 995294 CIRCLE K, Employer, CONSTITUTION STATE SERVICE COMPANY, Carrier, Defendants. Appeal by Plaintiff from opinion and award entered 10 March 2011 by the North Carolina Industrial Commission. Heard in the Court of Appeals 14 November 2011. Oxner Thomas + Permar, pllc, by Louis A. Waple and Kristin P. Henriksen, for Plaintiff. Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by M. Duane Jones and Neil P. Andrews, for Defendants. STEPHENS, Judge. On 28 August Defendant-carrier ( Defendants ) 2009, Defendant-employer Constitution filed with the State North Circle Service Carolina K and Company Industrial Commission a Form 24 application to terminate Plaintiff Uldarica M. Keeton s disability benefits, which commenced on 20 October 2008 after Keeton sustained a compensable injury in the course of her employment with Circle K. On 7 October 2009, Special -2Deputy Commissioner Emily M. Baucom entered an administrative decision and order disapproving Defendants application. Defendants appealed by requesting an evidentiary hearing. On 3 December 2009, the matter was heard before Deputy Commissioner entered a Myra 4 L. August Griffin. 2010 Deputy opinion and Commissioner award, in Griffin which she concluded, inter alia, that Keeton failed to prove that any disability or inability to earn wages she has had . . . is related to her [prior compensable] injury by accident. Keeton appealed Deputy Commissioner Griffin s opinion and award to the Full Commission. The evidence before the Full Commission tended to show the following: Before her injury, Keeton was a Circle K Market Manager in Charlotte whose primary duty was to supervise the day-to-day operations of each [Circle K] store in [her] market. On 9 June 2008, while traveling to a Circle K store, Keeton was injured in a motor vehicle accident. Defendants admitted compensability, and Keeton sought treatment for complaints of left knee pain, low back pain and headaches. Thereafter, Keeton was diagnosed with a lumbar strain, knee contusion, and face/scalp contusion, and was released to return to her regular activity. Following her release, Keeton continued treatment, -3was referred for physical therapy, and underwent an MRI scan of the brain. Keeton was subsequently discharged from treatment and again instructed to return to regular activity. Keeton returned to work at Circle K, and on 25 September 2008, she was transferred to the Winston-Salem market. Keeton traveled to the Winston-Salem market one time before seeking medical treatment on 2 October 2008 for complaints of worsening headaches and low back pain, allegedly commute from Charlotte to Winston-Salem. associated with her Keeton went on medical leave on 13 October 2008, and disability compensation commenced on 20 October 2008. Thereafter, Keeton neither returned to Winston-Salem to work as the Market Manager, nor did she contact [Circle K] regarding returning to work in any other capacity, and in June 2009 she was terminated by [Circle K] for failure to return to work from medical leave. Between October 2008 and January 2010, Keeton received the following medical advice and treatment: (1) based on an MRI, xrays, an EMG, and nerve conduction studies, Dr. Theodore Belanger noted a small central disc protrusion at the L5-S1 level, assigned work restrictions of no lifting greater than 20 pounds, no prolonged bending, stooping, squatting, kneeling or twisting, and no driving for more than one hour, and -4assigned a five percent permanent partial disability rating to Keeton s back; (2) based on an MRI, an EMG, and a nerve conduction study, Dr. John Welshofer noted a desiccated disc with central disc bulge at L5-S1 and opined that Keeton s sitting intolerance was related to pressure in the disc in the low back ; lumbar (3) strain, Dr. T. Kern concussion, Carlton and diagnosed central disc Keeton with protrusion a and placed her on light duty restrictions which included lifting 20 pounds occasionally ; and (4) a Functional Capacity Evaluation ( FCE ) revealed that Keeton was capable of lifting up to 35 pounds occasionally, carrying up to 35 pounds occasionally, and pushing and pulling up to 45 pounds of force. Drs. Belanger, Welshofer, and Carlton each opined that the Circle K Market Manager position in Winston-Salem was suitable employment for Keeton. Based on the foregoing evidence, the Full Commission found, inter alia, that (1) the Market Manager position in WinstonSalem fell within Keeton s permanent restrictions; (2) Keeton did not make a reasonable effort to return to the Market Manager position in Winston-Salem; and (3) Keeton s refusal of this position was not justified. Therefore, the Full Commission concluded Keeton is not entitled to any compensation at any -5time during the continuance return to her job. of her unjustified refusal to The Full Commission determined that Keeton is not entitled to payment by [D]efendants of any disability compensation after August 28, 2009, and compensation shall be suspended so long as [Keeton] continues to refuse to accept suitable employment offered by [Circle K]. From the opinion and award of the Full Commission, Keeton appeals. On appeal, Keeton first argues that the Full Commission s findings of fact and conclusions of law regarding refusal of suitable employment were improper because that issue was not raised by Defendants in the pre-trial agreement. The parties stipulated that the issue of We disagree. [w]hether [D]efendants Form 24 [a]pplication should have been approved was before Defendants the Industrial Form 24 Commission. application, In Special her Deputy denial of Commissioner Baucom (1) noted Keeton s contention that she is physically unable to return to her former position ; (2) noted Defendants contention that Keeton s physical restrictions do not impair [her] ability to obtain employment ; (3) found that the documentation is insufficient to show that [Keeton] is no longer totally disabled ; and (4) concluded that Defendants were not entitled to suspend or terminate Keeton s disability -6compensation. in denying In our view, the foregoing tends to indicate that Defendants Form 24 application, Special Deputy Commissioner Baucom considered both the suitability of Keeton s prior employment with Circle K and Keeton s failure to return to that employment. Baucom s order Keeton s would alleged Furthermore, Baucom s As such, review of Special Deputy Commissioner in order, necessarily refusal her review Deputy include of of consideration suitable Special Commissioner employment. Deputy Griffin of Commissioner found that the Market Manager position was suitable employment for Keeton and that [Keeton s] refusal of this position was not justified. Because the issue of Keeton s refusal of employment was before both Special Deputy Commissioner Baucom and Deputy Commissioner Griffin, we conclude that the Full Commission properly considered that issue and made relevant findings of fact and conclusions of law. Keeton s argument is overruled. Keeton next argues that the Full Commission erred in not following this Court s holding in Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996). Specifically, Keeton claims that there was no actual refusal of employment by Keeton such that her termination by Circle K -7should be considered constructive employment under Seagraves. refusal of suitable We disagree. Section 97-32 provides: If an injured employee refuses employment procured for him suitable to his capacity he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified. N.C. Gen. Stat. § 97-32 (2009). This Court has previously held that in applying section 97-32, the first question is whether the plaintiff s employment was voluntarily or involuntarily terminated. White v. Weyerhaeuser Co., 167 N.C. App. 658, 665, 606 S.E.2d 389, 395 (2005). If the termination is voluntary and the employer meets its burden of showing that a plaintiff unjustifiably refused suitable employment, then the employee is not entitled to any further benefits under [sections] 97-29 or 97-30. Id. (quoting Whitfield v. Lab. Corp. of Am., 158 N.C. App. 341, 354-55, 581 S.E.2d 778, 787 (2003)). On other hand, it to is only if the departure is determined have been involuntary that the question becomes whether the termination amounted to a constructive refusal of suitable [Seagraves]. Id. at 665-66, 606 S.E.2d at 395. work under -8In this case, the Full Commission found and Keeton does not dispute that after Keeton began medical leave on 13 October 2008, she never returned to work at Circle K and never contacted Circle K regarding returning to work in any other capacity. Testimony from Keeton s supervisor shows that a Circle K employee s job is protected during a period of medical leave for up to 12 weeks. Although Circle K ultimately terminated Keeton s employment in June 2009, that termination came (1) more than 30 weeks after Keeton s last contact with Circle K, and (2) more than 18 weeks after Keeton s protected medical leave expired. the time she employment, was she out was Further, Keeton testified that during of work but contacting not yet terminated from agencies and staffing recruiters to keep [her] options open and see what was out there. The foregoing evidence tending to show that Keeton never contacted Circle K during medical leave or in the more than 18 weeks following the expiration of medical leave and that she was actively seeking alternate employment is sufficient to show that Keeton voluntarily ended her employment at Circle K. This voluntariness obviated any consideration by the Full Commission of constructive refusal under Seagraves. White, 167 -9N.C. App. at 665-66, 606 S.E.2d at 395. Keeton s argument is overruled. Keeton finding next and argues that concluding Winston-Salem was the that suitable Full Market the Commission in Manager position in We employment. erred unpersuaded. are First, the testimony of Drs. Belanger, Welshofer, and Carlton all support the suitable. finding Second, that despite the any Winston-Salem alleged position contradiction was of the doctors testimony by the FCE, findings of fact by the Full Commission are conclusive on appeal when supported by competent evidence even where evidence exists that would support a contrary finding. Johnson v. S. Tire Sales & Serv., 358 N.C. 701, 705, 599 Commission s S.E.2d finding 508, is 512 (2004). supported by Because competent the Full evidence, we conclude that the Full Commission did not err in finding that the Winston-Salem position was suitable. Further, we conclude that conclusion this finding justifies a similar of law. Keeton s argument is overruled. Finally, Keeton argues that the Full Commission erroneously found that Keeton did not make a reasonable effort to return to the Market Manager position in Winston-Salem. contends, the Full Commission s conclusion As such, Keeton that Keeton -10 unjustifiably refused to return to her job was erroneous. As discussed supra, there is competent evidence showing that Keeton made no effort to return to her job at Circle K. Accordingly, the not Full Commission s finding that Keeton did make a reasonable effort to return is supported by competent evidence and, thus, binding on appeal. See id. The only question, then, is whether the finding that Keeton failed to return to work supports the conclusion that Keeton unjustifiably refused to return to work. Keeton contends that her refusal to return to work was justified because there is no evidence to establish that [she] knew or should have known that she could at least attempt a trial return to work as a market manager until the completion of the treating physicians depositions, nearly a year after her June 2009 treating termination. physicians Keeton evaluation of argues the that prior Winston-Salem to the Market Manager position, she believed she could not return to work and, therefore, her refusal to work was justified. The upshot of Keeton s argument on this issue is that a refusal of suitable employment is justified if the employee believes she is unable to perform the available work. For obvious reasons, we decline to hold that the Full Commission must base its determination of -11whether an employee s refusal is justified solely on that employee s lay opinion that she is unable to perform the work available. Per section 97-32, it is left to the opinion of the Industrial Commission whether an employee s refusal of suitable employment is justified. N.C. Gen. Stat. § 97-32. In this case, the Full Commission concluded as follows: The medical evidence, including the testimony of Drs. Belanger, Carlton and Welshofer, establishes that the Market Manager position in Winston-Salem was a suitable position for [Keeton]. Therefore, [Keeton] unjustifiably refused to return to her job, which was suitable employment available to her, when she stopped reporting to work following her initial visit to the stores in the Winston-Salem market. This conclusion was supported by the following findings by the Full Commission: after Keeton was terminated, Drs. Belanger, Carlton, and Welshofer reviewed the Winston-Salem Market Manager position and opined that the position was suitable as long as Keeton was permitted to take short breaks during driving and was not required to lift more than 20 pounds; before Keeton was terminated, Keeton was assigned work restrictions of no lifting greater than 20 pounds, no prolonged bending, stooping, squatting, kneeling or twisting, and no driving for more than one hour ; a Circle K market manager has the option of -12performing physical work; however, they are not required to do so and have the authority to delegate physical work. These findings, which were adequately supported by the evidence in the record, combined with the absence of any evidence that short driving breaks were prohibited by Circle K, adequately support the Full refused Commission s suitable conclusion employment that with Keeton Circle unjustifiably K. Accordingly, Keeton s argument that the Full Commission erroneously concluded that Keeton s refusal was unjustified is overruled. We conclude that the Full Commission appropriately determined that Keeton is not entitled to further benefits based on its conclusions voluntary Keeton and that unjustifiably that Circle Keeton s K refused met employment its suitable N.C. App. at 665, 606 S.E.2d at 395. burden termination of showing employment. White, was that 167 The Full Commission s opinion and award is AFFIRMED. Chief Judge MARTIN and Judge ELMORE concur.
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