Recently the NC Court of Appeals affirmed the Full Commission of the North Carolina Industrial Commission which granted benefits to one of our deserving clients. Joe Tunstall of O'Malley Tunstall, PLLC represented the Plaintiff in this long fought Worker’s Compensation claim. In Thompson v. Carolina Cabinet, our client’s workers’ compensation claim was denied in September of 2008. Joe Tunstall won the claim for the client at the trial level and it has been on appeal in front of the Full Commission of the Industrial Commission twice and the NC Court of Appeals twice. The issue for the Courts was the extent of our client’s disability and the futility of a job search considering his age, education and work restrictions. As quoted in NC Lawyers’ Weekly: “Even though the Industrial Commission did not expressly state which prong of Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993), it applied, it is apparent from the Commission’s findings that it applied the third prong: that plaintiff “is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment….” The opinion addressed what the Industrial Commission must determine when deciding futility under Russell. The opinion goes on to state: We hold that the Commission’s findings are sufficient to support its conclusion that plaintiff met his burden of showing futility. With respect to vocational considerations, the Commission pointed out that plaintiff was, at the time of its decision, 45 years old, had only completed high school, and his work experience was limited to heavy labor jobs. Turning to plaintiff’s physical limitations, he was restricted to lifting no more than 15 pounds and working no longer than nine hours a day. He was required to avoid repetitious bending, lifting, and twisting. Defendant employer was unable to supply work that met those limitations. Further, plaintiff was experiencing steady pain, although that pain varied greatly in intensity. These findings, which are supported by competent evidence, including testimony from plaintiff’s physician, are sufficient to support the Commission’s conclusion that it would be futile for plaintiff to search for a job consistent with his physical restrictions and pain given his age, education, and past work experience. Although the Commission was not required to reach this conclusion given the evidence, its decision is sufficiently supported under our standard of review. See Weatherford, 168 N.C. App. at 383, 607 S.E.2d at 352-53 (upholding Commission’s conclusion that plaintiff was disabled under prong three based on plaintiff’s evidence that he was 61, had only a GED, had worked all of his life in maintenance positions, was suffering from severe pain in his knee, and, as his doctor testified, was restricted from repetitive bending, stooping, squatting, or walking for more than a few minutes at a time); Johnson v. City of Winston-Salem, 188 N.C. App. 383, 392, 656 S.E.2d 608, 615 (holding that evidence tended to show that effort to obtain sedentary light-duty employment, consistent with doctor’s restrictions, would have been futile given plaintiff’s limited education, limited experience, limited training, and poor health), aff’d per curiam, 362 N.C. 676, 669 S.E.2d 319 (2008).1 Once an employee meets his initial burden of production under Russell, the burden of production shifts to the employer to show that suitable jobs are available and that the employee is capable of obtaining a suitable job taking into account both physical and vocational limitations. Demery, 143 N.C. App. at 265, 545 S.E.2d at 490. Defendants have, however, made no argument that the trial court erred in concluding that defendants failed to meet their burden… We, therefore, uphold the Commission’s determination that plaintiff is disabled under the third prong of Russell. Because defendants make no further arguments, the Commission’s opinion and award is affirmed. To read more about workers’ compensation please visit our web page: O'Malley Tunstall, PLLC.
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