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Shah v. Howard Johnson9/19/2000
Appeals by both plaintiff and defendant from an Opinion and Award filed 23 March 1999 by the North Carolina Industrial Commission. Heard in the Court of Appeals 27 April 2000.
On 16 December 1995, Bharat Shah (plaintiff) began work for UDP, Inc., d/b/a Howard Johnson (defendant-employer) as a night auditor. Plaintiff worked the third shift, which began at 11:00 p.m. and ended at 7:00 a.m., and was responsible for the front desk during his shift. Plaintiff received a salary of $200.00 per week, was allowed to lodge at the business, and ate meals with the manager's family.
On the night of 31 December 1995, shortly after plaintiff's shift began, plaintiff and another employee were robbed at gunpoint and shot. Plaintiff survived gunshot wounds to his back, hand and left leg, but the other employee's injuries were fatal. Plaintiff was admitted to Carolinas Medical Center (CMC) shortly after midnight on 1 January 1996 and subsequently underwent six surgical procedures while there. After his discharge from the hospital on 14 January 1996, plaintiff flew to his brother's home in California to recuperate.
On 13 January 1996, a Claims Representative for defendant's servicing agent executed a Form 63, Notice to Employee of Payment of Compensation Without Prejudice to Later Deny the Claim, advising plaintiff that payments of workers' compensation benefits would be made without prejudice to defendant's right to contest plaintiff's claim or its liability. On 14 January 1996, defendant began paying plaintiff compensation in the amount of $133.34 per week, based on a salary of $200.00 per week.
While in California, plaintiff was treated by Dr. Stephen A. Smith, an orthopedic surgeon. Dr. Smith recommended that plaintiff use crutches and receive physical therapy. Plaintiff testified he used two crutches until the end of February 1996, one crutch until the end of April 1996, and a cane through the end of June 1996. On 26 March 1996, Dr. Smith released plaintiff to return to work as a night auditor with restrictions placed on the amount of time he could stand. Soon thereafter defendant offered plaintiff his old job as a night auditor in Charlotte at his former salary of $200.00 per week, but plaintiff refused the offer. It does not appear that room and board was included in the job offer to plaintiff. After plaintiff's refusal, defendant stopped payments of compensation to him and filed Form 61, Denial of Workers' Compensation Claim, denying any further liability on plaintiff's claim in that he had refused to accept suitable employment.
While plaintiff was in California, he took a temporary job with a computer company from 1 June until 20 June 1996, working as an accountant and bookkeeper and earning $10.00 per hour. After 20 June 1996, plaintiff returned to India with his parents and remained there for six months in order to care for his parents. He married while in India but neither worked nor sought employment while there. He was able, however, to operate a motor scooter during the six months he was in India. Plaintiff returned to the United States in December 1996 and was seen again by Dr. Smith, who felt that plaintiff was "doing as well as he'll do." Dr. Smith also opined that plaintiff would "always have some permanent objective residual with regard to his quadriceps weakness secondary to the shotgun blast damage that was done."
Following a hearing, a deputy commissioner found that the value of the room and meals furnished to plaintiff was $100.00 per week and awarded plaintiff additional compensation of $66.67 per week for the period from 31 December 1995 through 29 March 1996, the date plaintiff refused defendant's job offer. The deputy commissione
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