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Phillips v. Hertz Corp.10/18/2005
ly reflect earning capacity if other employers would not hire the employee with the employee's limitations at a comparable wage level. The same is true if the proffered employment is so modified because of the employee's limitations that it is not ordinarily available in the competitive job market. The rationale behind the competitive measure of earning capacity is apparent. If an employee has no ability to earn wages competitively, the employee will be left with no income should the employee's job be terminated.
The Supreme Court concluded: "The Workers' Compensation Act does not permit [a defendant] to avoid its duty to pay compensation by offering an injured employee employment which the employee undernormally prevailing market conditions could find nowhere else and which [defendant] could terminate at will or . . . for reasons beyond its control." Id. at 439, 342 S.E.2d at 806.
In this case, the Full Commission found: "From 28 June 2000 through 12 September 2001, plaintiff worked modified light duty jobs tailored by the defendant-employer to compensate for plaintiff's physical restrictions. These jobs are not a reflection of plaintiff's wage-earning capacity." When Dominique Colombo, Hertz' manager, was asked about the two jobs, he testified: " oth jobs were in essence made available to [Phillips], were not necessarily jobs that were there." He agreed with counsel that the jobs were "made available" because Phillips had physical restrictions and that Hertz did not have a need to replace Phillips after he was laid off. Further, the record contains no evidence that other employers apart from Hertz would hire plaintiff to perform the light-duty work.
Our Supreme Court has consistently held that such evidence is sufficient to support a finding that a position is a "make-work" job not reflecting a plaintiff's ability to earn wages in the competitive job market. See Saums, 346 N.C. at 764, 487 S.E.2d at 750 (holding that a job newly created for the plaintiff's return to work was not an accurate measure of the plaintiff's ability to earn wages in the competitive job market when the record contained no evidence that employers other than the defendant would hire the plaintiff to do a similar job at a comparable wage); Peoples, 316 N.C. at 438, 342 S.E.2d at 806 (holding that a position did notaccurately reflect the plaintiff's earning capacity when the employer modified the job because of the plaintiff's condition, the employer did not intend to hire anyone to replace the plaintiff in that position, and the record contained no evidence that other employers would hire the plaintiff for that position at that wage). Accordingly, we hold that competent evidence supports the Commission's finding of fact that the clerical and Mobile III shuttle driver positions did not establish plaintiff's wage earning capacity.
II.
Defendants next contend that the record lacks "credible and competent evidence" to support the Full Commission's conclusion that Phillips is entitled to temporary total disability benefits beginning 8 June 2000. The determination that an employee is disabled is a conclusion of law that must be based upon findings of fact supported by competent evidence. Hilliard, 305 N.C. at 594- 95, 290 S.E.2d at 683.
In order to support a conclusion of disability, the Commission must find:
(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned beforehis injury in any other employment, and (3) that this individual's incapacity to earn was caused by plaintiff's injury.
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