064038o1.doc

I.C. NO. 064038, ROCKY BURRIS EUDY, Employee, Plaintiff v. MICHELIN NORTH AMERICA, INC., Employer, ACE USA INSURANCE COMPANY, Carrier, Defendants.  OPINION AND AWARD by J. BRAD DONOVAN, Deputy Commissioner, N.C. Industrial Commission.  Filed 6 May 2005.



This matter was heard by the undersigned on 16 November 2004 in Concord, North Carolina.  No depositions were received into evidence.  Upon receipt of the parties' written contentions, the record in this matter was duly ordered closed on 15 March 2005.  This matter is now ready for decision.
A P P E A R A N C E S
	Plaintiff:	Bollinger & Piemonte, Attorneys, Charlotte, North Carolina; Robert Bollinger, appearing.

	Defendant:	Hedrick, Eatman, Gardner & Kincheloe, Attorneys, Charlotte, North Carolina; Paul C. Lawrence, appearing.

* * * * * * * * * * *
The undersigned finds as fact and concludes as matters of law the following, which were entered into by the parties in their Pre-Trial Agreement and at the hearing as:
STIPULATIONS
1.	The Industrial Commission has jurisdiction over the subject matter of this case, the parties are properly before the Commission, and the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act at all relevant times.
2.	The Industrial Commission forms filed in this case are admissible without further authentication.  These include plaintiff's 18, 21 and 33, and defendants' 33, 33R and 60.
3.	The employee-employer relationship existed between the parties at all relevant times.
4.	The issues for determination are:
a.	Whether plaintiff has suffered a change of condition under N.C. Gen. Stat. §97-47, to-wit: defendants laid him off from his restricted duty job and after a period of temporary total disability, he returned to work earning less than his pre-injury wages?
b.	Whether plaintiff is entitled to additional indemnity payments under N.C. Gen. Stat. §97-30 due to his loss of earning capacity, or increased disability under §97-31?
c.	Whether defendants are entitled to reimbursement of vocational rehabilitation expenses incurred during the time period plaintiff had returned to work but had not informed defendants of his return to work?
d.	Whether defendants are entitled to a set off in an amount equal to the resignation package paid to plaintiff when he left their employ?
5.	The parties stipulated the following documentary evidence:
a.	Stipulated Exhibit #1:  Pretrial Agreement
b.	Stipulated Exhibit #2:  Medical records
c.	Stipulated Exhibit #3:  Personnel records
d.	Stipulated Exhibit #4:  I.C. Forms
8.	In addition to Stipulated Exhibit(s), the following Exhibits were admitted into evidence:
a.	Plaintiff's Exhibit #1:  Check
b.	Plaintiff's Exhibit #2:  Termination letter
c.	Plaintiff's Exhibit #3:  File from Homanit, USA
d.	Plaintiff's Exhibit #4:  W-2, 2002
e.	Plaintiff's Exhibit #5:  W-2, 2003
f.	Plaintiff's Exhibit #6:  Benefits statement
g.	Plaintiff's Exhibit #7:  Job description
h.	Plaintiff's Exhibit #8:  Pay stub
i.	Plaintiff's Exhibit #9:  W-2 and unemployment statement
j.	Defendants' Exhibit #1:  Rehabilitation notes
k.	Defendants' Exhibit #2:  Rehabilitation services invoice
* * * * * * * * * * *
	Based upon all of the competent evidence adduced from the record and the reasonable inferences therefrom, the undersigned makes the following:
FINDINGS OF FACT
1.	At the time of the hearing, plaintiff was 55 years old and had completed the seventh grade.  Plaintiff began his employment with defendant-employer in 1990 and held different jobs in the tire-building area.
2.	On 10 July 2000, plaintiff suffered an onset of bilateral carpal tunnel syndrome.  Defendants accepted liability for plaintiff's claim pursuant to a Form 60 and began paying benefits based upon an average weekly wage of $712.00, yielding a weekly compensation rate of $474.76.
3.	Plaintiff's carpal tunnel syndrome was treated by Dr. Warren Burrows.  Plaintiff underwent bilateral carpal tunnel releases in October 2000.
4.	On 18 January 2001, Dr. Burrows released plaintiff from treatment and imposed permanent restrictions of no lifting over 20-25 pounds with each hand, no forceful pinching or gripping activities and no use of vibratory or impact tools.  Dr. Burrows assigned a 5% permanent partial impairment rating to each of plaintiff's hands.
5.	Plaintiff returned to work at his pre-injury wages on 23 February 2001, primarily as a tire painter.  On 11 April 2001, the parties entered into a Form 21 Agreement by which defendants agreed to pay plaintiff for the permanent partial disability ratings to his hands.  The Agreement was approved by the Commission on 13 July 2001.  Plaintiff received payment in the amount of $9,495.20 pursuant to the Form 21 on 14 September 2001.
6.	The tire painting job required plaintiff to lift tires weighing up to 50 pounds approximately four times each.  Plaintiff processed 300 to 400 tires per day.  As a result, plaintiff returned to Dr. Burrows on 27 August 2001 with complaints of numbness in his fingers and pain in his wrists.  Dr. Burrows' examination "demonstrate[d] some evidence of median nerve irritation."  He diagnosed plaintiff with a worsening of his condition, fitted him with new splints, and recommended that his lifting restriction be lowered to 20 pounds.
7.	Plaintiff returned to work on light duty.  He presented to Dr. Burrows on 17 September 2001 showing improvement since his return to lighter work, although he still experienced numbness in his left hand and some soreness in his right hand.  Dr. Burrows recommended an additional FCE and that plaintiff remain on light duty until the study was completed.
8.	On 1 October 2001, Dr. Burrows reviewed the results of the FCE and recommended the following lifting restrictions: 21 to 50 pounds occasionally, 11 to 25 pounds frequently, and 1-10 pounds constantly.  For carrying, the restrictions were 51 to 100 pounds occasionally, 26 to 50 pounds frequently, and 11 to 20 pounds constantly.  Dr. Burrows noted that plaintiff needed an additional rating to his hands beyond that which had already been imposed.  He forwarded the new restrictions to defendant-employer.
9.	Plaintiff returned to work for approximately one week at a light duty position of splicing bands.  Plaintiff was sent home due to lack of work and eventually defendant-employer informed plaintiff of a voluntary resignation program wherein he would be paid $13,112.80 to voluntarily resign from employment with defendant-employer.  Plaintiff executed the voluntary resignation which provided that his last day of work was 9 November 2001.  The record indicates that this program was available to a number of employees, regardless of their disability status.  There is no indication that this payment was in any manner related to any compensation plaintiff may have been due under the North Carolina Workers' Compensation Act.
10.	Upon plaintiff's leaving defendant-employer's employ, defendant-employer voluntarily resumed plaintiff's temporary total disability compensation.  The undersigned finds that in so doing, defendants have admitted that plaintiff suffered from a change in condition and that they were obligated under the Act to reinstate benefits.
11.	Following plaintiff's resignation, defendants provided plaintiff with the vocational services of Nancy Stewart.  On 28 March 2002, Ms. Stewart met with plaintiff for the first and only time.  Ms. Stewart's records note that following their meeting, she made a number of telephone calls to other people regarding plaintiff and did some internet research.  The next contact she had with plaintiff was a letter she sent on 8 May 2002.
12.	On 13 May 2002, without the assistance of Ms. Stewart plaintiff obtained employment at Homanit, USA.  Plaintiff's position was driving a forklift and required that he complete a training course prior to beginning his duties.  Plaintiff trained for approximately two weeks, worked for approximately one week, then went out of work for an operation unrelated to his compensable injury.  Plaintiff was paid during his training and his period of work.
13.	Between 12 May and 20 May 2002, Ms. Stewart attempted to contact plaintiff by telephone and letter, but received no response.  On 20 May 2002, Ms. Stewart received a phone message from plaintiff's wife, stating that plaintiff was undergoing minor surgery and would be unable to attend GED classes for approximately one month.
14.	Following plaintiff's recovery from his surgery, he returned to Homanit, USA and continued working, earning $8.84 per hour.  On 11 August 2002, his pay rate increased to $8.98 per hour, and on 27 November 2002, it increased to $9.26 per hour.  While at Homanit, USA, plaintiff also earned significant overtime pay.
15.	Ms. Stewart next wrote to plaintiff on 28 June 2002, inquiring about setting up another appointment.  On 28 July 2002, Ms. Stewart made her next attempt to contact plaintiff but was unsuccessful.  On 6 August 2002, Ms. Stewart was informed by defendant-carrier's claims representative that plaintiff might be working.  Ms. Stewart confirmed plaintiff's employment with Homanit, USA, on the same day.
16.	Plaintiff continued to receive temporary total disability benefits in the weekly amount of $474.76 until 6 August 2002.  These payments were not due and payable following plaintiff's return to work on 7 May 2002.
17.	Following defendants' filing of a Form 33 requesting a hearing on the issue of plaintiff's fraudulent acceptance of compensation, and pursuant to an Order of the Commission, the issue was mediated and plaintiff agreed to reimburse defendants at the rate of no less than $75.00 per month, beginning in November 2003.
18.	On 13 March 2003, plaintiff was terminated by Homanit, USA, for excessive unexcused absences.  Plaintiff's termination was not related to his compensable injury and was for reasons a non-disabled employee would have been terminated.  During his employment with Homanit, USA, plaintiff earned a total of $20,073.50.  Plaintiff worked for Homanit, USA, for approximately 43 weeks, less the three weeks he was out of work in Summer, 2002, leaving a total of 40 weeks.  Because plaintiff did not work for a full year prior to his termination, determining his average weekly wage using the preferred method would not achieve just results.  Determining the average weekly wage by taking plaintiff's total income and dividing it by 40 weeks would provide a result which is fair and just to all parties.  Therefore, plaintiff's average weekly wage for his employment with Homanit, USA, is determined to be $501.83.
19.	Plaintiff continued to seek employment and on 8 September 2003, he found work with the City of Albemarle as a water tester at a treatment plant.  Plaintiff remains employed by the City of Albemarle; however, he is currently "laid off", pending his passing of an algebra test.  Plaintiff currently earns $10.21 per hour for an average weekly wage of $408.40.  If he passes the test, he will return to work at a higher wage.
* * * * * * * * * * *
	Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1.	Plaintiff sustained a compensable bilateral carpal tunnel injury arising out of and in the course of the employment on 10 July 2000.  Defendants accepted plaintiff's claim and he was paid temporary total disability compensation pursuant to the Act.  N.C. Gen. Stat. §97-2(6).
2.	A Form 21 Agreement was entered into by the parties and was approved by the Commission on 13 July 2001.  Plaintiff was paid permanent partial disability compensation in accordance with the ratings he received on his hands.  N.C. Gen. Stat. §97-53(18).
3.	Following plaintiff's return to work, he suffered a change in condition which increased his symptoms and which impacted his earning capacity and his degree of disability.  Plaintiff's change in condition is evidenced by the opinion of Dr. Burrows that plaintiff's permanent partial disability rating required adjustment, that plaintiff's restrictions were changed, and that defendants' voluntarily reinstated plaintiff's temporary total disability payments.  Upon receipt of plaintiff's new restrictions, defendant-employer could no longer provide him with work, impacting his earning capacity.  N.C. Gen. Stat. §97-47.
4.	When plaintiff returned to work at Homanit, USA, his earnings were less than his pre-injury wages, entitling him to two-thirds of the difference between his pre-injury wages of $712.00 and his current wages of $501.83 for the period from 13 May 2002 through 13 March 2003.  N.C. Gen. Stat. §97-30.
5.	Plaintiff's termination from his employment with Homanit, USA, for excessive unexcused absences constitutes a constructive refusal of employment.  The Court of Appeals in Seagraves v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 (1996), stated that in order to bar payment of benefits, an employer must demonstrate that: (1) the employee was terminated for misconduct; (2) the same misconduct would have resulted in the termination of a nondisabled employee; and (3) the termination was unrelated to the employee's compensable injury.  Id.  An employer's successful demonstration of such evidence is "deemed to constitute a constructive refusal" by the employee to perform suitable work, a circumstance that operates to bar benefits for lost earnings.  Id.  Accordingly, plaintiff is not eligible for temporary total or temporary partial disability compensation for the period he was without employment following the termination from Homanit, USA.
6.	Upon plaintiff's employment with the City of Albemarle, he again became entitled to temporary partial disability compensation in an amount equal to two-thirds of the difference between his average weekly wage of $712.00 and his earnings with the City of Albemarle of $408.40 for the remaining portion of the three hundred weeks from the date of injury, 10 July 2000.  This amount is subject to change should plaintiff's earnings increase during the payment period.  N.C. Gen. Stat. §97-30.
7.	Defendants are not entitled to reimbursement for the amount paid to plaintiff for his voluntary retirement.  Said payment constitutes a contract between the parties separate and apart from his workers' compensation injury as evidenced by its availability to non-injured employees.  Defendants are entitled to a credit only when payments are made "which by the terms of this Article were not due and payable when made."  The retirement package constitutes a payment which was not made under the terms of the Act; therefore, N.C. Gen. Stat. §97-42 does not apply.
8.	Defendants are not entitled to reimbursement for vocational rehabilitation costs.  These costs are part of medical treatment under N.C. Gen. Stat. §97-25 and are charged to defendants under the statute.  Any reimbursement charges to plaintiff for his acceptance of compensation during the time he was employed by Homanit, USA, were settled by the parties in mediation and is not an issue before the undersigned.
* * * * * * * * * * *
	Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned enters the following:
A W A R D
1.	Subject to a reasonable attorney's fee herein approved, defendant shall pay temporary partial disability compensation to plaintiff at a rate of two thirds of the difference between his pre-injury wages and the wages earned at Homanit, USA from 13 May 2002 through 13 March 2003, and again from 8 September 2003 and continuing through the remainder of a total of 300 weeks beginning on 10 July 2000, or until plaintiff begins earning wages equal to or greater than his pre-injury wage.  As much of said compensation as has accrued shall be paid in a lump sum.
2.	A reasonable attorney's fee of 25% of the compensation awarded to plaintiff in Paragraph above is hereby approved to be deducted from the lump sum due plaintiff and paid directly to counsel.  Thereafter, every fourth payment shall be made directly to plaintiff's counsel.
3.	Defendants shall pay the costs.
* * * * * * * * * * *
	IT IS FURTHER ORDERED that this case be REMOVED from the Concord docket.
This the 5th day of May 2005.



			S/			
J. BRAD DONOVAN
DEPUTY COMMISSIONER

JBD:sm

I.C. No. 064038	Page 10

Code:  123