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Chavis v. TLC Home Health Care8/16/2005
(1994). The employer must "come forward with evidence to show not only that suitable jobs are available, but also that the [claimant] is capable of getting one, taking into account both physical and vocational limitations." Kennedy v. Duke Univ. Med. Ctr., 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990).
The full Commission found the following pertinent findings of fact on the issue of temporary total disability:
12. Prior to April 9, 2001, plaintiff contacted defendant-employer to request sedentary work. Plaintiff was told there was no light duty work available. Plaintiff's employment with defendant-employer was not terminated, and she returned to work for defendant-employer in April 2001 earning the same wages she was earning at the time of the injury .
13. Plaintiff was on crutches through March 2001. Her prior work experience was limited to jobs which would have required her to work on her feet. She did not look for sedentary work between October 26, 2000 and April 9, 2001, because she was still an employee of defendant-employer. It would have been futile in any event for her to have looked for sedentary work, given her restrictions and her past work experience.
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21. As a result of the injury she sustained on October 26, 2000, plaintiff was unable to earn the same wages she was earning at the time of the injury in the same or any other employment, from October 26, 2000 to April 9, 2001.
There is competent evidence in the record to support the full Commission's findings of fact that Ms. Chavis was unable to earn the same wages she earned prior to her injury , either in the same employment or in other employment. On 10 November 2000, Dr. Dawson recommended that Ms. Chavis be out of work for a four-month period. Also, prior to 9 April 2001, Ms. Chavis contacted TLC Home Health Care to inquire about sedentary work but was told none was available. This supports the full Commissions finding that Ms. Chavis was incapable of earning the same wages in the same employment as a CNA. See Moore v. Davis Auto Serv., 118 N.C. App. 624, 628, 456 S.E.2d 847, 850 (1995) (" vidence of an employer's refusal to allow an employee to return to work because there was no 'light' work available supports a finding that the employee was not capable of earning wages in the same employment." (citation omitted)).
Also, Ms. Chavis testified that she was twenty-seven-years-old, had a high school diploma, CNA certificate, and lobotomy certificate. All of her previous employment had required her to work on her feet. Ms. Chavis had no computer, receptionist, or secretarial skills. This is competent evidence to support the full Commission's finding of fact that " t would have been futile in any event for her to have looked for sedentary work[.]" See Peoples v. Cone Mills Corp., 316 N.C. 426, 444, 342 S.E.2d 798, 809(1986) ("Where, however, an employee's effort to obtain employment would be futile because of age, inexperience, lack of education or other pre-existing factors, the employee should not be precluded from compensation for failing to engage in the meaningless exercise of seeking a job which does not exist."). As there is competent evidence to support the full Commission's findings of fact on the issue of temporary total disability, we find TLC Home Health Care's argument to be without merit.
Next, TLC Home Health Care argues that the full Commission erred in concluding that Ms. Chavis gave notice of her injury to TLC Home Health Care because she filed Form 18 after the thirty-day time period required by section 97-22 of the North Carolina General Statutes. We disagree.
Section 97-22 of the North Carolina General Statute
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