 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Anderson v. Dana Corp.12/21/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
The Estate of Johnny Anderson("plaintiff") appeals an Opinion and Award of the Full Commission of the North Carolina Industrial Commission filed 25 September 2003, denying temporary and total disability benefits. Plaintiff contends the Commission erred in placing the burden of proof of disability on plaintiff after reversing the deputy commissioner's Order and in concluding therewas no disability after plaintiff's termination. As we find no error in the Commission's order, we affirm.
The evidence before the Commission tends to show that plaintiff was employed by Dana Corporation ("defendant") and injured his back while on the job on 3 October 1998. Plaintiff reported to Pro-Med medical offices at defendant's direction on 5 October 1998 for evaluation of back pain and a drug test. Plaintiff tested positive for cocaine, but denied using illicit substances to defendant.
Plaintiff was evaluated for his back injury on 7 October 1998, and written out of work for two weeks. He was reevaluated in late October and given an MRI for further diagnosis. Defendant accepted liability for plaintiff's 3 October injury and filed a North Carolina Industrial Commission Form 60 on 17 November 1998. Plaintiff's medical treatment was transferred to Dr. David Dupuy ("Dr. DuPuy"), and plaintiff was released for work with some limitations on 10 December 1998. Defendant had no work available within the medical restrictions. Plaintiff returned for his final evaluation on 29 December 1998 and was released for full duty work with a three percent (3%) permanent partial disability.
Defendant instructed plaintiff to return to work on 5 January 1999, rather than 30 December 1998. When plaintiff reported to work, he was immediately asked to meet with his supervisor, where he was terminated for failing the drug test on 5 October 1998.
Plaintiff was examined by Dr. Ade Akande ("Dr. Akande") on 23 February 1999. Dr. Akande recommended treatments for plaintiff'sback pain, but did not issue any work restrictions. Plaintiff did not complete any treatments. Plaintiff was also reexamined on 27 May 1999 by Dr. Alfred Rhyne, III ("Dr. Rhyne"), who had seen plaintiff in October after the original injury . Dr. Rhyne also prescribed pain medication for plaintiff's back pain, but did not restrict plaintiff's work capacity.
Plaintiff filed a Form 33 with the Industrial Commission on 2 June 2000 and a hearing was held on 18 September 2001. The deputy commissioner found that plaintiff was terminated for misconduct unrelated to his compensable injury and had therefore constructively refused employment and was not entitled to additional compensation. Plaintiff appealed this ruling to the Full Commission.
On 25 September 2003, the Full Commission entered an Opinion and Award reversing in part and affirming in part the Opinion and Award of the deputy commissioner. The Commission held that defendant failed to show plaintiff was discharged for misconduct and therefore entitled to total disability benefits through the day he returned to work and to partial disability benefits for nine weeks for the three percent disability rating to his back. The Commission found, however, that plaintiff failed to prove he was incapable of earning his pre-injury wages after the date of termination and did not award temporary total disability benefits after 5 January 1999. Plaintiff died from causes unrelated to his injury on 27 December 2001 and
Page 1 2 3 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|