In a recent case, Garrett v. Goodyear Tire & Rubber Co. (Garrett II), the North Carolina Court of Appeals affirmed the Industrial Commission’s determination that a claimant was not disabled due to her failure to engage in a reasonable job search. This case was before the North Carolina Court of Appeals a second time.
In its first hearing on the matter, the Industrial Commission concluded the claimant’s neck injury was compensable and awarded her total temporary disability compensation (TTD) for a 14-month period. Both parties appealed (Garrett I). At issue was whether the commission made sufficient findings to support its TTD award, and more specifically whether the commission appropriately considered the claimant’s wage earning capacity during the relevant time period.
Under North Carolina law, it is well settled that to support a disability determination, the claimant must demonstrate he or she is unable, as a result of the injury, to earn the same wages in the same employment, or in any other employment. Additionally, the commission must find that the claimant made a reasonable, but unsuccessful, effort to obtain employment, or alternatively, that it would be futile for the claimant to seek employment.
In Garrett I, the commission found the claimant was unable to earn the same wages in the same employment because Goodyear stopped accommodating her light-duty work restrictions. But they failed to address whether the claimant was able to earn the same wages in any other employment. The court sent the case back to the commission to address this issue.
On re-hearing, the commission determined the claimant did not prove she was incapable of finding suitable work because she had not engaged in a reasonable job search. Following the accident, the claimant took two weeks off before returning to her pre-injury position with light-duty work restrictions and continued to work in that position for 15 months. Notably, her doctors never completely wrote her out of work. After the defendant notified the claimant it would no longer accommodate her work restrictions, she went on leave and began receiving disability benefits, but at all times remained technically employed with the company. Nearly 14 months later, the defendant offered to return her to her pre-injury position at her prior wages, and although she was medically cleared for the position by two of her doctors, she declined the offer.
The claimant testified that her job search was limited to looking in a telephone book, calling employers she believed would offer work, and asking friends for work. She did not present any evidence apart from her own testimony, which the commission gave little weight. She did not produce evidence of applications she actually submitted, nor did she recall the names of any companies she actually contacted. Furthermore, the claimant was capable of non-sedentary work, but only sought sedentary positions. Based on these new findings of fact, the commission concluded the claimant did not present sufficient evidence of a reasonable job search. Accordingly, the commission reversed its prior determination and concluded the claimant was not disabled during the relevant time period. Most notably, the commission concluded, as a matter of law, that in order to establish her disability, the claimant was required to engage in a reasonable job search with other employers, despite the fact that she remained employed with Goodyear.
Once again, the claimant appealed the commission’s decision and argued the commission incorrectly concluded she must engage in an outside job search. Before the Court of Appeals a second time in Garrett II, the court refrained from issuing a blanket holding that claimants are required as a matter of law to engage in an outside job search. Instead, the court deferred to the commission and examined whether its conclusion was based upon sufficient factual findings, and whether competent evidence supported those findings. The court concluded the commission’s findings were sufficient to support the determination that the claimant was not disabled, and the court affirmed the commission’s amended opinion and award.
This case serves as an important reminder to clients that, even though the employee technically remains employed by the employer of injury, and that employer does not have work for the employee, that fact does not mean they meet the legal standard for disability compensation. Claimants bear the burden of proving they have taken reasonable steps to attempt to procure suitable employment.