Recently, the North Carolina Court of Appeals weighed in on the issue of upholding an award of disability benefits based on employment in Kersey v. Perdue Farms Inc., No. COA24-455 (filed Dec. 31, 2024).
It was an appeal by Defendants from an Opinion and Award by the Commission ordering that Plaintiff receive disability benefits beginning May 5, 2021.
On May 5, 2021, Plaintiff experienced a sharp, electric pain in his neck and shoulder, while manually cranking a gear that required an unusual amount of exertion due to a potential malfunction or inadequate lubrication of the landing gear he was working on. Plaintiff’s claims were denied, and he went on to obtain medical treatment on his own. Plaintiff did not work after the May 5, 2021, injury and Perdue Farms did not offer him any light duty, modified, or full duty return to work options. At hearing, Plaintiff testified that he believed he remained employed by Perdue Farms because he was still using the company’s health insurance and he had not received any termination notification.
On April 6, 2023, a Deputy Commissioner found that Plaintiff had suffered a compensable injury to his neck on May 5, 2021, and awarded indemnity benefits from that date and continuing until Plaintiff returned to suitable employment or further order of the Commission, which was confirmed by the Full Commission.
On appeal, Defendants argued that the Commission erred in finding that Plaintiff remained employed as of the date of the evidentiary hearing, which was rejected by the Court of Appeals in part due to Plaintiff’s hearing testimony. Defendants also argued that work restrictions had not been assigned, which was rejected by the Court of Appeals as one physician noted Plaintiff was “not to drive, operate heavy machinery or make important decisions while taking narcotics, muscle relaxants, or neuroleptic”; a second physician stated Plaintiff should not drive a truck until he was assessed by a surgeon and testified at deposition that he “would have absolutely kept this patient out of work”; and the surgeon subsequently signed an out of work note. In addition, the Court of Appeals agreed with the Commission that Plaintiff’s treating physicians recommended surgery, and his work restrictions were pending the surgery, so it would be unreasonable to expect Plaintiff to seek other employment.
As a result of the above findings, the Court of Appeals found competent evidence to support the Commission’s findings that Plaintiff believed he remained employed by Perdue Farms and no evidence of termination existed; that two physicians placed work restrictions on Plaintiff preventing him from returning to his pre-injury position; and Defendant did not offer Plaintiff suitable employment. Furthermore, there was competent evidence that Plaintiff remained available for work within his restrictions, and given his non-MMI status and continued employment, it was premature for him to seek alternative employment.
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