An unpublished opinion of the North Carolina Court of Appeals does not constitute 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.

NO. COA13-942

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

ANTOINETTE MORGAN,

Employee, Plaintiff,

v. North Carolina Industrial 

Commission

I.C. No. 899078

INTERIM HEALTHCARE,

Employer, SELF-INSURED 

(GALLAGHER BASSETT SERVICES, 

INC., Servicing Agent),

Defendant.

Appeal by plaintiff from opinion and award entered 10 April 

2013 by the North Carolina Industrial Commission. Heard in the 

Court of Appeals 8 January 2014.

Hyler & Lopez, P.A., by Robert J. Lopez, for plaintiffappellant.

Brooks, Stevens & Pope, P.A., by Ginny P. Lanier, for 

defendant-appellee.

BRYANT, Judge.

Where there was sufficient evidence that plaintiff reached 

maximum medical improvement in January 2009, and that plaintiff 

was offered but unjustifiably refused suitable employment, we 

affirm the opinion and award of the Full Commission finding and 
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concluding that plaintiff is not entitled to ongoing disability 

benefits.

Plaintiff-employee Antoinette Morgan worked as a Certified 

Nursing Assistant with Defendant employer Interim Healthcare 

Services where she assisted patients in their homes. On 10 

January 2008 and again on 18 January 2008 while assisting a 

patient, plaintiff injured her back and hip. The injury, 

diagnosed as a paralumbar strain, was reported to defendant and 

plaintiff’s claim was accepted pursuant to defendant’s Form 60 

as a compensable injury. Plaintiff’s average weekly 

compensation rate was determined to be $232.78. On 29 April 

2010, plaintiff filed a request that the claim be assigned for 

hearing due to a disagreement about plaintiff’s entitlement to 

indemnity and medical benefits. On 6 September 2011, the matter 

was heard before Deputy Commissioner Kim Ledford. In an order 

entered 18 October 2012, Deputy Commissioner Ledford denied 

plaintiff’s claim for further medical compensation, awarding 

compensation at a rate of $232.78 per week for six weeks only. 

Plaintiff appealed the deputy commissioner’s order and award to 

the Full Commission.

The matter was reviewed by the Full Commission (the 

Commission) which entered an opinion and award finding that 
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between 10 January 2008 and April 2010, plaintiff saw ten 

physicians in regard to symptoms stemming from her compensable 

injury. On 30 April 2008, less than four months after 

plaintiff’s compensable injury, she was examined by Dr. James 

Hoski, an orthopaedic surgeon with Spine Carolina. “Dr. Hoski 

found no objective findings to support Plaintiff’s complaints of 

pain.” While Dr. Hoski referred plaintiff to a pain management 

physician, he recommended that plaintiff continue working four 

hours per day with no patient transfers, bending, squatting, or 

lifting more than five pounds. In October 2008, plaintiff 

sought a second opinion from orthopaedic specialist Dr. Stephen 

David. In November 2008, Dr. David assessed plaintiff at 

maximum medical improvement for the injury to her back from 

which the workers’ compensation claim stemmed. Dr. David

assigned permanent work restrictions of eight hour shifts, 

alternating between sitting and standing with limited bending, 

stooping, and twisting, and no lifting, pushing or pulling more 

than 10 pounds. On 5 January 2009, Dr. David assigned plaintiff 

a two percent permanent impairment rating to her spine and 

discharged her from his care. After plaintiff received 

permanent work restrictions, defendant twice offered her a fulltime clerical support position. Plaintiff accepted the position 
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the second time it was offered but did not show up for work. 

The day after she was to report to work, plaintiff went to the 

Asheville Family Health Center. She requested a note 

restricting her from work for the previous day. Defendant 

stated that regardless of the out-of-work note, plaintiff 

violated a zero tolerance policy by failing to notify defendant 

she could not come to work, and plaintiff was terminated from 

defendant’s employment. In April 2010, plaintiff was receiving 

care from her primary care physician, Dr. Coin, and continued to 

complain of left-side body symptoms. Dr. Coin “considered the 

possibility that many of Plaintiff’s body symptoms were 

manifestations of her emotions . . . .”

The Commission concluded that a preponderance of the 

evidence established plaintiff had reached maximum medical 

improvement with respect to her compensable injury by 5 January 

2009. “Defendant has provided all medical treatment reasonably 

required to effect a cure or give relief, and Plaintiff is not 

entitled to further medical treatment under this claim.” 

“Plaintiff unjustifiably refused suitable employment offered to 

her by Defendant in December 2008 and again in January 2009. 

Plaintiff is not entitled to compensation during the 

continuation of her refusal.” The Commission denied plaintiff’s 
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claim for further medical compensation and temporary total 

disability, and affirmed the deputy commissioner’s award of 

$232.78 per week for six weeks for plaintiff’s two percent 

impairment to her back. Plaintiff appeals.

__________________________________

On appeal, plaintiff raises the following four issues: 

whether the Commission erred by finding and concluding that 

plaintiff (I) was at maximum medical improvement; (II) was 

offered suitable employment; (III) refused suitable employment; 

and (IV) was not entitled to further ongoing disability 

benefits.

Standard of review

This Court's review is limited to a 

determination of (1) whether the 

Commission's findings of fact are supported 

by competent evidence, and (2) whether the 

Commissioner's conclusions of law are 

supported by the findings of fact. The 

Commission's findings of fact are conclusive 

on appeal if supported by competent 

evidence, even where there is evidence to 

support contrary findings. The Commission's 

conclusions of law, however, are reviewable 

de novo by this Court. The Commission is the 

sole judge of the credibility of the 

witnesses and the weight accorded to their 

testimony.

Meares v. Dana Corp./Wix Div., 172 N.C. App. 291, 292, 615 

S.E.2d 912, 915 (2005) (citation and quotations omitted). 
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“Unchallenged findings of fact are presumed to be supported by 

competent evidence and are binding on appeal.” Allred v. 

Exceptional Landscapes, Inc., ___ N.C. App. ___, ___, 743 S.E.2d 

48, 51 (2013) (citation omitted). However, during our review of 

challenged findings of fact, we do not reweigh the evidence. 

See Bishop v. Ingles Markets, Inc., ___ N.C. App. ___, ___, ___

S.E.2d ___, ___ (filed April 15, 2014) (No.COA13-1102) (citation 

omitted).

I

Plaintiff first argues the Commission erred by finding that 

she reached maximum medical improvement (MMI) by January 2009. 

Plaintiff contends that while her treating physicians did not 

recommend surgical procedures to address her injury, she had 

been referred to pain management specialists for evaluation and 

treatment. And, because there were still courses of treatment 

available to decrease or help manage her pain, plaintiff 

contends she was not yet at MMI. We disagree.

MMI as a purely medical determination occurs 

when the employee's physical recovery has 

reached its peak, so that the extent to

which an employee has reached MMI is not 

necessarily a crucial fact upon which the 

question of plaintiff's right to 

compensation depends.

The decisions of the Supreme Court and this 

Court, which have consistently used the same 
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standard to address disability-related 

claims regardless of whether those claims 

arose before or after MMI, make no mention 

of utilizing different standards for making

such determinations depending upon whether 

the claimant is still in the healing period.

Wynn v. United Health Servs./Two Rivers Health-Trent Campus, 214 

N.C. App. 69, 78, 716 S.E.2d 373, 381—82 (2011) (citing Walker 

v. Lake Rim Lawn & Garden, 155 N.C. App. 709, 717—18, 575 S.E.2d 

764, 769 (utilizing N.C. Gen. Stat. § 97–32 to evaluate the 

defendant's assertion that the plaintiff had refused suitable 

employment despite the fact that the plaintiff had not reached 

MMI), and Bailey v. Western Staff Servs., 151 N.C. App. 356, 

363—64, 566 S.E.2d 509, 514 (2002) (evaluating the suitability 

of a job offered to the claimant prior to MMI utilizing the same 

standard applied in other cases)) (citations and quotations 

omitted).

In its findings of fact, the Commission acknowledged the 

medical assessments made by Drs. Hansen, Hoski, and David but 

gave the greatest weight to the testimony of Dr. David. 

Plaintiff challenged the Commission’s finding of fact premised 

on Dr. David’s testimony that “Plaintiff reached maximum medical 

improvement [(MMI)] by January 5, 2009 and retains a two percent 

permanent impairment to her back as a result of the January 2008 

injuries.” Though not specifically challenged, the Commission, 
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taking into account the testimony of the doctors, further found 

that plaintiff’s physical complaints had a non-organic basis: 

“[i]t appears that Plaintiff may suffer from a psychological 

problem such as a somatization disorder. However, this has not 

been shown to have been caused by Plaintiff’s work-related 

accidents.”

Other findings of fact show that in October 2008, plaintiff 

was seen by Dr. David, an orthopaedic specialist, working with 

the Blue Ridge Bone & Joint Clinic.

22. . . . Dr. David reviewed Plaintiff’s xrays and MRI results and saw no evidence of 

scoliosis, spondylolysis or 

spondylolisthesis, as well as no indications 

of neurologic impingement or disc 

herniation. The MRI showed only mild preexisting facet arthropathy at L4-5 and L5-

S1. The examination showed no neurological 

deficits, only mild tenderness over the 

paraspinal musculature, and subjective 

decreased sensation of the left thigh and 

left leg, which could not be objectively 

verified. The examination was also positive 

for Waddell’s Signs. Dr. David was of the 

opinion that Plaintiff might have some 

irritation around the piriformis, and he 

referred her for a piriformis block . . . 

because it did not appear that Plaintiff’s 

pain was from her back.

23. On October 30, 2008, Plaintiff 

underwent a sciatic nerve distribution block 

to the piriformis muscle . . . . Plaintiff 

returned to Dr. David and advised that the 

piriformis injection did not help her pain.

. . . As of this visit, Dr. David assessed 
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plaintiff at maximum medical improvement 

from her workers’ compensation claim as to 

her back, and he recommended that Plaintiff 

undergo a functional capacity evalutation 

(FCE). . . .

. . .

25. . . . [Dr. David] reviewed the FCE and 

noted that there were variable levels of 

physical effort on Plaintiff’s part, such 

that the FCE was neither reliable nor 

helpful in delineating Plaintiff’s 

functional status. Dr. David set permanent 

work restrictions of limited bending, 

stooping and twisting, no lifting, pushing 

or pulling more than 10 pounds, and 

alternate sitting and standing. . . .

. . .

30. . . . Dr. David noted that the FCE 

would allow Plaintiff to work an 8 hour day. 

Dr. David’s deposition testimony supports the Commission’s 

finding of fact which plaintiff challenges.

Based on these findings of fact, the Commission concluded

that “[a] preponderance of the evidence in view of the entire 

record establishes that by January 5, 2009, Plaintiff had 

reached maximum medical improvement with respect to her 

compensable injury by accident.” As Dr. David’s deposition 

testimony supports the Commission’s findings of fact and those 

findings support its conclusion that plaintiff reached MMI as to 
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the compensable injury to her back by 5 January 2009, we 

overrule plaintiff’s argument.

II & III

Plaintiff next argues the Commission erred in finding that 

defendant offered plaintiff “suitable employment” and that 

plaintiff’s refusal was unjustified. Plaintiff contends the 

evidence does not support a finding that the job duties were 

within the scope of her physical restrictions and as to her 

termination from employment, that defendant failed to establish

that her termination was unrelated to her disability. We 

disagree.

“If an injured employee refuses suitable employment . . ., 

the employee shall not be entitled to any compensation at any 

time during the continuance of such refusal, unless in the 

opinion of the Industrial Commission such refusal was 

justified.” N.C. Gen. Stat. § 97-32 (2013). “‘Suitable 

employment’ is defined as any job that a claimant is capable of 

performing considering his age, education, physical limitations, 

vocational skills and experience.” Munns v. Precision 

Franchising, Inc., 196 N.C. App. 315, 317, 674 S.E.2d 430, 433 

(2009) (citation omitted); see also N.C. Gen. Stat. § 97-2(22)

(2013) (defining suitable employment).
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A “suitable” position must both accurately 

reflect the claimant's ability to earn wages 

in the open market and not constitute “makework:”

. . . “The Workers’ Compensation Act 

does not permit [the] defendants to 

avoid their duty to pay compensation by 

offering an injured employee employment 

which the employee under normally 

prevailing market conditions could find 

nowhere else and which [the] defendants

could terminate at will or for reasons 

beyond their control.”

Wynn, 214 N.C. App. at 75, 716 S.E.2d at 380 (citations 

omitted). “If other employers would not hire the employee with 

the employee's limitations . . . or if the proffered employment 

is so modified because of the employee's limitations that it is 

not ordinarily available in the competitive job market, the job 

is ‘make work’ and is not competitive.” Precision Franchising, 

196 N.C. App. at 319, 674 S.E.2d at 434 (citation and quotations 

omitted). The burden is on the employer to show that the job 

offered meets the definition of suitable employment. See id. at

318, 674 S.E.2d at 433.

Here, the Commission made the following challenged finding 

of fact:

When Plaintiff was released by Dr. David to 

return to light duty work in December 2008, 

Ms. King and other personnel with Defendant 

identified a job position that would include 

light duty work in the office and 
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accommodate her work restrictions. The 

position offered to Plaintiff was the 

Clerical Support position, which is a 

position for which Defendant regularly hired 

and which Plaintiff could have held 

indefinitely. The position was not simply 

made up to accommodate Plaintiff’s 

restrictions.

We look to the evidence of record for support. But, initially, 

we note the Commission’s finding of fact regarding plaintiff’s 

physician-imposed work restrictions: “Dr. David set permanent 

work restrictions of limited bending, stooping and twisting, no 

lifting, pushing or pulling more than 10 pounds, and alternate 

sitting and standing.” “[Dr. David] had no medical indication 

that Plaintiff could not perform work within the restrictions 

given to her, as they were consistent with activities of daily 

living. Dr. David stated that the restrictions he assigned 

plaintiff represent the minimum she was able to perform.”

Chief Executive Officer of Interim Healthcare, Delores 

King, testified that following plaintiff’s January 2008 

compensable injury, “[p]laintiff worked in a light duty capacity 

in the office filing, answering telephones, and performing other 

clerical duties as needed.” Plaintiff worked for four hours a 

day. King testified as follows with regard to the offer for a 

full-time clerical support position:

A. This is a job offer by Shelly Schaffer, 
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who was the director of professional 

services, offering a full time – a 

full-time job, forty hours a week, that 

– within the limits of her 

restrictions. . . .

. . .

Q. Now, the job that’s being offered, is 

this a position that the company 

regularly has available for hire, to 

hire people in?

A. Yes, it is.

Q. So it was not a position that was just 

made up for [plaintiff]?

A. Was this position – this is a position 

that we normally would have had in the 

office, yes.

. . .

Q. And the position itself, then was there 

an opening for the position that you 

were offering, the full-time position 

that you were offering [plaintiff]?

A. What I did at the time was I had two 

part-time people who worked . . . .

. . . We have peak times when things 

are busy. So what we did do at that 

time is extended the hours of the 

weekend people, and extended [a parttime person’s hours]. But we still had 

a gap where we needed somebody to fill 

in for those, because we had some 

overtime involved. So we – [plaintiff] 

filled that role.
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The evidence of record supports the Commission’s finding 

that the job requirements of the position offered plaintiff 

included light duty work in an office consistent with 

plaintiff’s physician-imposed work restrictions and it was a 

position for which defendant regularly hired. Defendant’s job 

offer was not “make work.” Therefore, we overrule plaintiff’s 

argument that the employment offered was “make work” and not 

suitable employment.

Refusal of suitable employment

Plaintiff further contends defendant failed to establish as 

grounds for termination that her conduct amounted to misconduct 

or fault.

[W]here an employee, who has sustained 

a compensable injury and has been provided 

light duty or rehabilitative employment, is 

terminated from such employment for 

misconduct or other fault on the part of the 

employee, . . . the test is whether the 

employee's loss of, or diminution in, wages 

is attributable to the wrongful act 

resulting in loss of employment, in which 

case benefits will be barred, or whether 

such loss or diminution in earning capacity 

is due to the employee's work-related 

disability, in which case the employee will 

be entitled to benefits for such disability.

Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755, 

762, 656 S.E.2d 676, 681 (2008) (citation omitted).
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On 23 December 2008, plaintiff met with Shelly Schaffer, 

RN, the Director of Professional Services for Interim 

Healthcare. Schaffer presented plaintiff with a formal offer 

for a full-time Clerical Support position. Plaintiff was given 

until 26 December 2008 to accept the position but did not 

respond. By letter dated 5 January 2009, Schaffer again offered 

plaintiff a full-time Clerical Support position, instructing 

plaintiff to respond to the offer by 15 January 2009. On 15 

January 2009, plaintiff notified defendant that she accepted the 

job offer but that she had a note from the Asheville Family 

Health Centers excusing her from work through 16 January.

38. Plaintiff was expected to begin work 

with Defendant as an office assistant on 

January 19, 2009. After Plaintiff failed to 

call out of work or show up, she was 

terminated pursuant to Defendant's 

established company policy. Via a letter 

from Ms. King dated January 23, 2009, 

Defendant advised Plaintiff that Defendant 

expected Plaintiff to show up for work on 

January 19, 2009 and that her failure to do 

so or to maintain contact with Defendant 

resulted in forfeiture of her employment.

39. Ms. King testified that because 

Defendant is a healthcare business, it has a 

very strict attendance policy about which 

all employees are informed. Employees sign a 

policy acknowledging that termination is 

immediate in the event that they do not show 

up for work. . . . Ms. King explained that 

Defendant will be flexible in the event an 

employee is sick or has another legitimate 
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problem, but if an employee simply does not 

show up for work or does not call, the 

employee is immediately terminated. 

In her deposition, King testified “[t]o get fired, you had to be 

dishonest, you had to be insubordinate, or you had to be noshow.”

43. On January 19, 2009, Plaintiff returned 

to Asheville Family Health Centers. 

Plaintiff was not evaluated, rather, she 

requested an out of work note to 

retroactively take her out of work on 

January 17, 2009. . . . On January 20, 2009, 

[an RAC nurse] wrote a second out of work 

note, without any accompanying evaluation of 

Plaintiff, taking Plaintiff out of work from 

January 17, 2009 through January 23, 2009. . 

. .

. . .

48. . . . Dr. Clemenzi[, with Asheville 

Family Health Centers,] testified that

"unfortunately" she and the clinic staff 

give out of work notes to patients "pretty 

freely." Dr. Clemenzi further testified that 

she gives out work notes to people who she 

thinks could be working.

We find that the record evidence supports the Commission’s 

findings of fact, and we affirm the Commission’s conclusion that 

plaintiff unjustifiably refused suitable employment. 

Accordingly, we overrule plaintiff’s argument.

IV
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Lastly, plaintiff argues that even if the Commission were 

to find that plaintiff unjustifiably refused suitable 

employment, plaintiff is nevertheless entitled to ongoing 

disability benefits. Plaintiff contends that if work-related 

injuries prevented her from performing alternative duties or 

finding comparable employment opportunities, she would be 

entitled to benefits. We disagree.

“[T]he Seagraves rule aims to provide a means by which the 

Industrial Commission can determine if the circumstances 

surrounding a termination warrant preclusion or discontinuation 

of injury-related benefits.” McRae v. Toastmaster, Inc., 358 

N.C. 488, 495, 597 S.E.2d 695, 700 (2004) (referencing Seagraves 

v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397 

(1996)). “[U]nder the Seagraves' test, to bar payment of 

benefits, an employer must demonstrate initially that: (1) the 

employee was terminated for misconduct; (2) the same misconduct 

would have resulted in the termination of a nondisabled 

employee; and (3) the termination was unrelated to the 

employee's compensable injury.” Id. at 493, 597 S.E.2d at 699 

(citing Seagraves, 123 N.C. App. at 234, 472 S.E.2d at 401).

As discussed in issues II and III, plaintiff’s termination 

was based on her failure to report to work without any prior
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notification to defendant, conduct which violated defendant’s 

employment policy. Chief Executive Officer King testified that 

all employees are informed that Interim Healthcare has a strict 

attendance policy and that employees sign a policy acknowledging 

that termination of employment is immediate in the event the 

employee fails to show-up for work absent notice. Plaintiff was 

on notice that her failure to report to work absent any 

notification to defendant would result in her termination. This

failure to notify defendant about plaintiff’s need to be absent 

from work was not related to plaintiff’s compensable injury. 

Though not dispositive of this last point, we note that in 

plaintiff’s brief to this Court, she states, “[p]laintiff did 

not notify her employer herself as she was not awake to call 

them . . . .” The record provides no indication that workrelated injuries prevented plaintiff from performing the tasks 

required by the position, tasks which were within her work 

restrictions. Thus, defendant has provided sufficient evidence 

to support the Commission’s conclusion that plaintiff 

unjustifiably refused suitable work.

An employer's successful demonstration of constructive 

refusal to perform suitable work by an employee can serve as a

bar to benefits for lost earnings, “unless the employee is then
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able to show that his or her inability to find or hold other 

employment ... at a wage comparable to that earned prior to the 

injury is due to the work-related disability.” Id. at 493—94, 

597 S.E.2d at 699 (citation and quotations omitted).

Plaintiff contends that she is entitled to ongoing benefits 

because her work related injuries have prevented her from either 

performing alternative duties or finding comparable employment 

opportunities. Plaintiff contends that “even if [she was] 

capable of some work, seeking and finding employment within her 

very limited sedentary / light duty work restrictions would be 

futile and unrealistic . . . .” We disagree.

The Commission made the following unchallenged finding of 

fact:

Plaintiff was 47 years of age. She has a 

high school education and one and one-half 

years of college, as well as several 

continuing education clerical certificates 

from community college. Her employment 

history includes . . . clerical accounts 

payable clerk work for a department store 

for several years, . . . clerical work for a 

janitorial services business for 

approximately 10 years, . . . and a clerical 

work for a doctor’s office for approximately 

eight years.

Following plaintiff’s January 2008 injury, plaintiff “worked in 

a light duty capacity in the office filing, answering 

telephones, and performing other clerical duties . . . .” The 
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Commission also found that “Plaintiff has not looked for work 

since her termination by Defendant in January 2009.” On these 

findings, the Commission drew the following conclusion:

[t]he greater weight of evidence fails to 

show that Plaintiff continues to be unable 

to earn wages in the same or any employment. 

Plaintiff has refused suitable employment 

and has otherwise made no effort to work 

under reasonable restrictions. Therefore, 

she is not entitled to any compensation 

pursuant to N.C. Gen. Stat. ' 97-29 or N.C. 

Gen. Stat. ' 97-30.

(citations omitted). Based on these unchallenged findings of 

fact, we affirm the Commission’s conclusion that plaintiff was 

unable to show her inability to find or hold employment at a 

wage comparable to her pre-injury wage was due to her workrelated disability. Therefore, plaintiff is not entitled to 

ongoing disability benefits. Accordingly, plaintiff’s argument

is overruled.

Affirmed.

Judges CALABRIA and GEER concur.

Report per Rule 30(e).