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Moore v. Concrete Supply Co.3/19/2002
PUBLISHED
Appeal by defendants-appellants from Amended Opinion and Award of the North Carolina Industrial Commission entered 18 September 2000. Heard in the Court of Appeals 30 January 2002.
Employer Concrete Supply Company and insurer Royal Insurance Company appeal from an 18 September 2000 amended opinion and award of the Industrial Commission, awarding employee Dennis Moore ongoing workers' compensation disability benefits and medical expenses resulting from a compensable back injury by accident at work on 30 April 1995. On that date, Moore--a concrete truck driver--sustained a lower-back injury while using a jack-hammer to remove hardened concrete from inside his truck.
Dr. Russell T. Garland initially treated Moore for lower-back pain, instructing him to avoid heavy lifting, and recommending that he undergo physical therapy. Thereafter, Dr. Garland placed Moore on light duty. An 11 August 1995 MRI of Moore's lumbar spine revealed no evidence of a herniated disc or root compression; however, the MRI indicated congenital canal stenosis due to congenitally short pedicles with interfacetal hypertrophy at multiple levels. Dr. Garland referred Moore to Dr. Mark B. Hartman of the Miller Orthopaedic Clinic.
In the fall of 1995, Moore underwent a Functional Capacity Evaluation to determine his ability to work and his work restrictions, if any. Following completion of the evaluation, Dr. Hartman determined that Moore was capable of medium level work but was incapable of longterm truck driving. On 5 November 1995, Moore reached maximum medical improvement but was still unable to return to his pre-injury employment due to his 30 April 1995 injury by accident.
In January 1996, defendants employed John P. McGregor to provide vocational rehabilitation services to Moore; McGregor took Moore's medical and vocational history and outlined a work plan for him. In April 1996, McGregor met with Jim Shaar, Concrete Supply Company's personnel manager, to discuss positions for which Moore might qualify.
In early May 1996, McGregor prepared a job description for a "maintenance worker" position with Concrete Supply Company, and forwarded the job description to Dr. Hartman. Dr. Hartman opined that the job duties of the position were within Moore's physical limitations and restrictions, and approved the job description. Dr. Garland reviewed Moore's Functional Capacity Evaluation and similarly concluded that the proffered job was within Moore's physical limitations and restrictions. Concrete Supply Company formally offered the "maintenance worker" position to Moore, to begin on 24 June 1996; but Moore refused to accept or even attempt the position.
Thereafter, defendants filed a Form 24 to terminate payment of compensation to Moore, which was approved on 12 November 1996 by an administrative order of the Commission retroactive to 24 June 1996 based upon Moore's unjustified refusal to attempt the physician-approved "maintenance worker" position with Concrete Supply Company. Following a hearing on 7 December 1997, Deputy Commissioner W. Bain Jones, Jr. filed an opinion and award on 30 April 1998 concluding that Moore unjustifiably refused a suitable job within his restrictions offered by Concrete Supply Company, and that Moore's compensation was properly terminated effective 24 June 1996. Moore appealed; on 28 May 1999, the full Commission modified and affirmed in relevant part Deputy Commissioner Jones's opinion and award. Moore moved for reconsideration; on 30 September 1999, the full Commission entered a new opinion and award denying Moore's motion, vacating the previous 28 May 1999 opinion and award as a result of errors therein, but otherwise co
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