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Conklin v. Carolina Narrow Fabrics Co.2/1/1994
tandards was due to the injury which was the subject of the workers' compensation claim, his failure to meet these standards was related to his workers' compensation claim. Burrow v. Westinghouse Electric Corp., 88 N.C. App. 347, 352, 363 S.E.2d 215, 218, disc. review denied, 322 N.C. 111, 367 S.E.2d 910 (1988). Since plaintiff's complaint alleges that he was "unable to continue working at his job because of the pain resulting from his back injury ," he alleges facts sufficient to defeat application of the subsection (c) defense.
N.C.G.S. § 97-6.1 (e), also argued by defendant, creates another narrow exception to the prohibition stated in subsection (a), reading:
The failure of an employer to employ, either in employment or at the employee's previous level of employment, an employee who receives compensation for permanent total disability, or a permanent partial disability interfering with his ability to adequately perform work available, shall in no manner be deemed a violation of this section.
Hence, pursuant to section 97-6.1 (e), an employer may discharge an employee on the basis of the employee's disability which prevents him from carrying out the duties for which he is employed. Johnson v. Builder's Transport, Inc., 79 N.C. App. 721, 723, 340 S.E.2d 515, 517 (1986). This subsection, however, applies only to employees who have received compensation for "permanent total disability" or "permanent partial disability," terms that have distinct meanings under the North Carolina Workers' Compensation Act, N.C. Gen. Stat. §§ 97-29, -31 (1991), but which are not the only types of disability for which a claimant may receive compensation. While plaintiff's complaint does allege that plaintiff received some disability payments, it does not aver that he received compensation for either type of disability required by subsection (e), and, it does not, therefore, allege an unconditional affirmative defense that would justify a Rule 12(b)(6) dismissal. In view of the foregoing, we are compelled to rule that plaintiff's complaint alleging retaliatory discharge was sufficient to withstand a Rule 12(b)(6) motion to dismiss. This ruling does not foreclose summary judgment for defendant upon a showing that it has paid compensation for permanent total disability or permanent partial disability.
Reversed.
Judges Lewis and Wynn concur.
Disposition
Reversed.
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