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Whitfield v. Laboratory Corporation of America6/17/2003
wage was "at least $280.00." An employee can establish that she is unable to earn the wages she earned at the time of her injury four different ways:
(1) the production of medical evidence that is physically or mentally, as a consequence of the work related injury , incapable of work in any employment;
(2) the production of evidence that is capable of some work, but that has, after reasonable effort on part been unsuccessful in her effort to obtain employment; (3) the production of evidence that is capable of some work but that it would be futile because of pre-existing conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that has obtained other employment at a wage less than that earned prior to the injury .
Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (citations omitted).
In the present case, plaintiff presented evidence under the fourth option, in the form of check stubs showing her earnings from the job she began on 1 August 1998, as well as a summary of those earnings in relation to the stipulated amount of earnings from plaintiff's job with employer. Thus, there is competent evidence in the record to support the Commission's finding that plaintiff had demonstrated a reduced wage earning capacity under the fourth option. This finding, based on the competent evidence in the record, was a proper basis for the Commission to award plaintiff partial disability benefits. See Larramore v. Richardson Sports Ltd. Partners, 141 N.C. App. 250, 259-60, 540 S.E.2d 768, 773 (2000), aff'd per curiam, 353 N.C. 520, 546 S.E.2d 87 (2001) (holding that a former professional football player with an $86,000.00 contract who had shown that because of injury he could not play football and had to perform low-paying jobs had presented sufficient evidence of reduced wage earning capacity). The Commission did not err in awarding plaintiff additional temporary total disability benefits from 21 July 1998 through 31 July 1998 and temporary partial disability benefits based on plaintiff's wage differential from 1 August 1998. Defendants' argument is overruled.
V.
Similar to the argument above, defendants contend that the Commission erred in finding that plaintiff was entitled to continuing benefits, because plaintiff unjustifiably refused suitable employment. If an employer meets its burden of showing that a plaintiff unjustifiably refused suitable employment, then the employee is not entitled to any further benefits under N.C. Gen. Stat. ยงยง 97-29 or 9730. Gordon v. City of Durham, 153 N.C. App. 782, 787, 571 S.E.2d 48, 51 (2002); Franklin v. Broyhill Furniture Industries, 123 N.C. App. 200, 206, 472 S.E.2d 382, 386, cert. denied, 344 N.C. 629, 477 S.E.2d 39 (1996). Defendants argue that plaintiff's failure to return to work from 21 July 1998 to 23 July 1998 constituted an unjustifiable refusal of suitable employment. As noted in the Commission's findings of fact:
12. Over the next several days plaintiff, or someone on her behalf, called defendant-employer early each morning, informing them that plaintiff continued to be in a great deal of pain and could not work. Plaintiff was informed by her supervisor Ms. Howard, that as long as she called in and reported her status each day there would be no problems.
15. On Friday, July 24, 1998, plaintiff drove to Raleigh and reported for work at her normal time. She was informed that she should return home, and come back on Monday to talk with Ms. Howard who was not at work that day. Plaintiff provided defendant employer with a copy of a statement she had received from the emergency
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