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Phillips v. Hertz Corp.10/18/2005
he amount subject to a 10% penalty. The order also provided that " efendants shall pay plaintiff attorney's fees in the amount of $600.00 for defendants' unreasonable litigiousness." On 13 January 2003, defendants submitted a "Notice of Exception" to that order.
On 15 April 2003, the Deputy Commissioner entered an opinion and award, concluding that Phillips was not entitled to temporary partial disability benefits from 28 June 2000 through 11 September 2001 because any diminution in his wages was not a compensable consequence of his compensable injury. With respect to the period beginning 12 September 2001, the Deputy Commissioner declined to award temporary total disability benefits because of Phillips' failure to engage in an active job search. The Deputy Commissioner denied the claim for sanctions for failure to provide medical treatment, but ordered defendants to pay all future medical compensation to the extent it was reasonably designed to provide relief, lessen the period of disability, or effect a cure. Phillips filed a notice of appeal to the Full Commission.
On 5 May 2004, the Full Commission entered its opinion and award modifying the Deputy Commissioner's decision. The FullCommission agreed with the Deputy Commissioner that Phillips' wages were not decreased from 8 June 2000 through 12 September 2001 and that any diminution in earnings was due to a lack of overtime and was not causally related to the compensable right knee injury. Contrary to the Deputy Commissioner, however, the Full Commission concluded that " s a result of the 8 June 2000 injury, the plaintiff remains disabled and is entitled to be paid by the defendant ongoing total disability . . . from 8 June 2000 and continuing until further order of the Commission." The Commission also held that defendants were entitled to a credit for the wages paid for the modified light-duty positions and for the interior design work. Defendants have timely appealed from the Full Commission's opinion and award.
Discussion
As our Supreme Court has held, "appellate review of an award from the Commission is generally limited to two issues: (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are justified by the findings of fact." Johnson v. Southern Tire Sales & Serv., 358 N.C. 701, 705, 599 S.E.2d 508, 512 (2004). With respect to the findings of fact, they "are conclusive on appeal when supported by competent evidence even though evidence exists that would support a contrary finding." Id. (internal quotation marks omitted). When the findings of fact "'are insufficient to determine the rights of the parties, the court may remand to the Industrial Commission foradditional findings.'" Id. (quoting Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982)).
I.
Defendants first argue that the evidence did not support the Commission's finding that the light-duty clerical position and the Mobile III shuttle driver position were "make-work" positions that did not evidence plaintiff's wage earning capacity.
It is well-established that "the fact that an employee is capable of performing employment tendered by the employer is not, as a matter of law, an indication of plaintiff's ability to earn wages." Saums v. Raleigh Cmty. Hosp., 346 N.C. 760, 764, 487 S.E.2d 746, 750 (1997). As our Supreme Court first explained in Peoples v. Cone Mills Corp., 316 N.C. 426, 438, 342 S.E.2d 798, 806 (1986):
If the proffered employment does not accurately reflect the person's ability to compete with others for wages, it cannot be considered evidence of earning capacity. Proffered employment would not accurate
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