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Wagoner v. Piedmont/Hawthorne Holdings6/7/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Plaintiff, Robbie Wagoner, was employed by defendant-employer beginning in October of 1996. In December 1997, he was diagnosed with degenerative disc disease, but sought no further treatment for the condition until after 20 September 1999, when he injured his back while at work. Due to worsening pain, plaintiff reported his back injury to his employer. On 27 September 1999, he sought medical treatment and was removed from work for a week. An MRI on 7 October 1999 revealed degenerative changes and a herniated disc. According to his treating physician, the back pain was related to"the lifting incident at work" and plaintiff elected to have surgery.
Plaintiff returned to work for defendant-employer on 3 April 2000. On 19 April, while performing heavy lifting, plaintiff "experienced a specific onset of back pain." He was diagnosed as suffering from recurrent herniation and despite being given lifting restrictions of 25 pounds, he was removed from work again due to ongoing pain. He worked intermittently thereafter and consulted with a neurosurgeon on 20 July 2000. A second surgery was scheduled for 6 September 2000. On 21 August 2000, plaintiff was removed from work because of his persistent pain. After the surgery, plaintiff returned to work full-time on 11 December 2000. On 29 October 2001, the deputy commissioner found that plaintiff had sustained an injury in the course of his employment and required defendants to pay temporary total disability from 9 October 1999 through 2 April 2000, and from 21 August 2000 through 10 December 2000, as well as all reasonable medical expenses relating to the injuries. Defendants paid Wagoner all disability benefits on 17 December 2001.
On 10 December 2001, defendant-employer terminated plaintiff's employment for violations of its attendance policy. Plaintiff requested a hearing, contending that he had been fired under a false pretext after the favorable award from the Commission. The deputy commissioner denied his claim. On appeal, the Full Commission found that over the course of his employment, plaintiff had been "reprimanded for his work attendance, both before andsince the workplace injuries." The Commission also made the following pertinent findings:
5. In accordance with the attendance policy, employees with six months to six years of employment were entitled to six days of sick leave and ten vacation days per year. Employees are charged with a Full Date Occurrence (FDO) anytime they are not at work if the absence does not qualify as vacation, sick, funeral, holiday or jury duty leave, as spelled out in the policy. Employees who incur two FDO's in twelve months are given a verbal warning. Those with three FDO's in twelve months receive a written warning. Those with more than three FDO's in twelve months may be terminated.
6. Under the attendance policy, employees are charged a partial day occurrence (PDO) for arriving late to work, returning late from lunch, leaving work for appointments, or leaving before the end of the shift. Employees who receive eight PDO's in 12 months receive a verbal warning, nine PDO's receive a written warning and more than nine PDO's in 12 months may be terminated.
7. In 2001, plaintiff's attendance record showed he took sick leave on January 2, 3, 18; February 15; March 5 and 6, for a total of six days. Plaintiff took vacation leave January 11; March 16; July 2, 3, 5; August 8, 22, 29, and October 8, 10, 17 and 25, fo
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