IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-461

Filed: 7 January 2020

From the North Carolina Industrial Commission, I.C. No. 14-053926

STACY GRIFFIN, Employee-Plaintiff,

v.

ABSOLUTE FIRE CONTROL, INC., Employer, EVEREST NATIONAL INS. CO. & 

GALLAGHER BASSETT SERVS., Carrier, Defendants.

Appeal by Plaintiff from an opinion and award entered 25 January 2019 by the 

North Carolina Industrial Commission. Heard in the Court of Appeals 30 October 

2019.

Sellers, Ayers, Dortch & Lyons, PA, by Christian R. Ayers, and John F. Ayers, 

III, for Plaintiff.

Brotherton, Ford, Berry & Weaver, PLLC, by Demetrius Worley Berry, and 

Daniel J. Burke, for Defendant.

BROOK, Judge.

Stacy Griffin (“Plaintiff”) appeals from the opinion and award of the North 

Carolina Industrial Commission (the “Commission”) denying his request for 

disability compensation from Absolute Fire Control and its insurance carriers, 

Everest National Insurance Company and Gallagher Bassett Services (collectively 

“Defendants”). On appeal, Plaintiff argues the Commission erred in concluding he 
GRIFFIN V. ABSOLUTE FIRE CONTROL

Opinion of the Court

2

was not disabled and that his post-injury job was suitable employment. We affirm in 

part. We reverse in part and remand for additional findings. 

I. Factual and Procedural Background

Plaintiff worked for Defendant from 4 June 2007 to 23 October 2014 as a pipe 

fitter in Charlotte, North Carolina. Plaintiff’s job responsibilities included installing 

and hanging sprinkler pipes and operating power machines and grease fittings. 

Plaintiff worked ten hours a day, five days a week, and earned between $18 and $20 

dollars per hour. Plaintiff testified that pipefitters are expected to be able to lift the 

pipes they are working with and that pipes could weigh anywhere from 25 to 300 

pounds. 

On 23 October 2014, while Plaintiff was operating a scissor lift at work, the 

machine malfunctioned and threw Plaintiff into the rails of the lift, which caused 

injuries to his upper left back and ribs. Plaintiff returned to work one month after 

his injuries but was restricted from lifting anything over 20 pounds, standing or 

walking over 30 minutes, and driving while taking hydrocodone. Plaintiff’s pre-injury 

job duties were outside of his assigned restrictions, so Defendant offered Plaintiff 

work in the fabrication shop, which Plaintiff accepted. In the fabrication shop, 

Plaintiff cut rods, drove a truck, made deliveries, and boxed up materials needed at 

job sites. Plaintiff testified at the hearing before the Full Commission that he 

primarily was “helping” another employee in the shop who had been assigned to the 
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Opinion of the Court

3

shop around the same time as Plaintiff. That employee, according to Jeffrey Younts, 

Vice President of Absolute Fire Control, replaced someone who had previously been 

in that position and was lifting more than 20 pounds. Plaintiff maintained his preinjury work schedule and wage earnings. 

After two years of therapy, treatment, and joint injections, Plaintiff’s treating 

physician assigned Plaintiff permanent work restrictions of no lifting more than 20 

pounds, to alternate sitting and standing, no bending, and to wear a brace while 

working. 

In August 2016, Plaintiff underwent non-work-related heart surgery. When 

he returned to work in November 2016, Plaintiff asked his supervisor if he could 

return to work in the field. Plaintiff believed the additional walking in the field would 

help his back condition. Defendant allowed Plaintiff to return to the field as a helper, 

where his job duties included wrapping Teflon tape on sprinkler heads, putting pipe 

hangers together, and driving a forklift to load sprinkler pipe for the installation 

crews. 

On 28 November 2016, Plaintiff filed a Form 33 “Request for Hearing” seeking 

a determination as to whether the fabrication shop and field helper positions were 

suitable jobs. A hearing was held before Deputy Commissioner Jesse M. Tillman, III, 

on 20 June 2017. Deputy Commissioner Tillman issued an opinion and award finding 

Plaintiff had failed to meet his burden of proving he was disabled and thus did not
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Opinion of the Court

4

reach the question of whether the positions were suitable employment. Deputy 

Commissioner Tillman denied Plaintiff’s request for temporary total and temporary 

partial disability payments. 

Plaintiff appealed to the Full Commission (the “Commission”). After hearing 

the appeal on 7 May 2018, the Commission issued its opinion and award on 25 

January 2019 affirming the Deputy Commissioner and additionally finding the 

fabrication shop position was suitable employment. The Commission found in part: 

28. [Vice President of Absolute Fire Control] Mr. 

Younts testified the fabrication shop positions are 

permanent positions with Defendant-Employer. Mr. 

Younts testified the work within the fabrication shop is an 

essential part of what Defendant-Employer does through 

packaging material, putting the parts together so the pipe 

fitters and foreman can do the work at the job sites and 

Defendant-Employer continues to have a need to hire and 

employ workers in the fabrication shop. 

. . . 

32. Based upon a preponderance of the evidence 

in view of the entire record, the Full Commission finds that 

the fabrication shop is suitable employment. The 

fabrication shop position is a permanent position with 

Defendant-Employer for which Defendant-Employer has a 

regular and constant need to keep staffed. The fabrication 

shop position was not specifically tailored or created for 

Plaintiff. Further, the job duty requirements for the 

fabrication shop position are within Plaintiff’s permanent 

restrictions and Plaintiff was physically able to perform 

these job duties for almost two years from November 24, 

2014 until his non-work-related heart surgery in August 

2016. The fabrication shop position entailed the same 

wages and hours as Plaintiff’s pre-injury position. 
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Opinion of the Court

5

33. Based upon a preponderance of the evidence 

in view of the entire record, the Full Commission finds that 

Defendant-Employer’s unique hiring practices of hiring 

based upon word of mouth and personal recommendations 

does not render the fabrication shop position not suitable. 

Albeit confined to Defendant-Employer’s unique 

“advertisement,” the positions available with DefendantEmployer, including the fabrication shop position, are 

available to individuals in the marketplace.

34. With regard to Plaintiff’s contention that the 

field helper job is not suitable employment, the Full 

Commission finds that Defendant-Employer never offered 

Plaintiff the field helper job as suitable employment. To 

the contrary, Plaintiff specifically requested to return to 

work in the field following his non-work-related heart 

surgery and Defendant-Employer accommodated 

Plaintiff’s request. Further, at the time Plaintiff chose to 

return to work in the field, Defendant-Employer had 

suitable employment available for Plaintiff in the 

fabrication shop. 

. . . 

37. Based upon a preponderance of the evidence 

in view of the entire record, the Full Commission finds that 

Plaintiff has failed to show that he is disabled. To the 

contrary, a preponderance of the evidence shows that 

Plaintiff is able to earn his pre-injury wages with 

Defendant-Employer in a suitable position that is within 

his permanent work restrictions. Furthermore, none of 

Plaintiff’s treating physicians have removed him from 

work in any employment. He has not made a reasonable, 

but unsuccessful search for work nor has he shown that it 

would be futile due to preexisting factors to search for 

work. Plaintiff has not proven that he is disabled in 

employment outside of his employment with DefendantEmployer. 
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Opinion of the Court

6

The Commission then concluded: 

4. In controversy is whether the fabrication shop 

position that Plaintiff worked in from November 24, 2014 

until August 2016 and field worker position that Plaintiff 

worked in following his return to work in 2016 are suitable 

jobs and indicative of his wage earning capacity. Plaintiff 

contends that although he remains employed by 

Defendant-Employer, the work he is performing for 

Defendant-Employer is “make-work” and if his 

employment with Defendant-Employer were to end, then 

he would be unable to earn his pre-injury wages in the 

competitive marketplace. . . . In the present case, a 

preponderance of the evidence shows that the fabrication 

shop position with Defendant-Employer is suitable 

employment as it is a permanent position with DefendantEmployer and it is essential to Defendant-Employer’s 

business and is a position that Defendant-Employer has a 

regular and constant need to keep staffed. The fabrication 

shop position was not tailored or created specifically to fit 

Plaintiff’s restrictions. The fabrication shop position is 

within Plaintiff’s permanent restrictions and physical 

capacity to perform as evidenced by Plaintiff successfully 

performing the job duties of the fabrication shop position 

for almost two years and Plaintiff is working the same 

hours and earning the same wages he did in his pre-injury 

position. Further, the mere fact that Defendant-Employer 

confines the advertisement of its positions to the unique 

practice of word of mouth and/or personal 

recommendations does not render the positions with 

Defendant employer not suitable. . . . With regard to the 

field worker position, Defendant-Employer did not offer 

Plaintiff this position as suitable employment, instead 

Plaintiff requested to return to work in this position and 

Defendant-Employer accommodated Plaintiff’s request. 

Thus, the suitability of this position is moot.

5. Furthermore, Plaintiff has not otherwise proven 

that he is disabled as no medical evidence was produced by 

Plaintiff that he is physically or mentally, as a result of the 
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Opinion of the Court

7

work-related injury, incapable of work in any employment. 

No reasonable effort was made to obtain employment 

elsewhere. No evidence was presented that Plaintiff is 

capable of some work, but that seeking work would be futile 

because of preexisting conditions, such as wage, 

inexperience, or lack of education, to seek employment or 

that he is earning less than his pre-injury wages. Hilliard, 

305 N.C. at 595, 290 S.E.2d at 683; Russell, 108 N.C. App. 

762, 425 S.E.2d 454.

Plaintiff timely appealed.

II. Standard of Review

Our review of an opinion and award of the Commission is “limited to 

consideration of whether competent evidence supports the Commission’s findings of 

fact and whether the findings support the Commission’s conclusions of law.” Philbeck 

v. Univ. of Mich., 235 N.C. App. 124, 127, 761 S.E.2d 668, 671 (2014) (citation and 

marks omitted). The findings of fact made by the Commission are conclusive on 

appeal if supported by competent evidence “even if there is evidence to support a 

contrary finding.” Nale v. Ethan Allen, 199 N.C. App. 511, 514, 682 S.E.2d 231, 234 

(2009). The Commission’s conclusions of law are reviewed de novo. Gregory v. W.A. 

Brown & Sons, 212 N.C. App. 287, 295, 713 S.E.2d 68, 74 (2011).

III. Analysis

The Plaintiff challenges three of the Commission’s conclusions that served to 

bar him from disability benefits. First, the Commission concluded that Plaintiff had 

not engaged in a reasonable but unsuccessful effort to obtain post-injury employment. 
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Opinion of the Court

8

Second, the Commission concluded “[n]o evidence was presented that Plaintiff is 

capable of some work, but that seeking work would be futile because of preexisting 

conditions, such as wage, inexperience, or lack of education, to seek employment or 

that he is earning less than his pre-injury wages.” And, finally, Plaintiff takes issue 

with the Commission’s conclusion that Defendant provided and, for a time, Plaintiff 

performed suitable employment. 

We hold that the reasonable effort analysis reflects a well-reasoned application 

of the law to these facts but conclude that the Commission’s futility and suitable 

employment assessments are built on a misapplication of the governing case law. 

A. Disability and Suitable Employment Jurisprudence

Disability means incapacity, because of injury, to earn the wages the employee 

was receiving at the time of injury in the same or any other employment. N.C. Gen. 

Stat. § 97-2(9) (2017). The burden is on the employee to prove diminished earning 

capacity as the result of the work-related injury. See Harvey v. Raleigh Police Dep’t, 

96 N.C. App. 28, 35, 384 S.E.2d 549, 553 (1989). 

A determination of disability is a conclusion of law that must be supported by 

specific findings which show: (1) plaintiff was incapable after his injury of earning 

the same wages he had earned before his injury in the same employment; (2) plaintiff 

was incapable after his injury of earning the same wages he had earned before his 

injury at any other employment; and (3) the incapacity to earn was caused by 
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Opinion of the Court

9

plaintiff’s injury.1 See Hilliard v. Apex Cabinet Co., 305 N.C. at 593, 290 S.E.2d at 

682. The burden is on the employee to establish all three findings. See Medlin v. 

Weaver Cooke Const., LLC, 367 N.C. 414, 420, 760 S.E.2d 732, 736 (2014). The 

employee may offer proof of the first two findings through several methods, including: 

(1) By producing medical evidence that the employee is 

physically or mentally, as a consequence of the workrelated injury, incapable of work in any employment; or 

(2) By producing evidence that the employee is capable of 

some work, but after reasonable effort on the part of the 

employee has been unsuccessful in efforts to obtain 

employment; or 

(3) By producing evidence that the employee is capable of 

some work but that it would be futile because of preexisting conditions, i.e. age, inexperience, lack of 

education, to seek other employment; or 

(4) By producing evidence that the employee has obtained 

other employment at a wage less than that earned prior to 

the injury. 

Russell v. Lowes Product Distribution, 108 N.C. App. 762, 765-66, 425 S.E.2d 454, 

457 (1993). 

Once the employee presents substantial evidence that he is incapable of 

earning the same wages in the same or any other employment, the burden shifts to 

 

1 There is no dispute in this case that Plaintiff is incapable of working in his pre-injury job 

after his accident (Hilliard factor 1). Similarly, the parties agree and the Commission found Plaintiff’s 

incapacity to earn was caused by his injury (Hilliard factor 3). Our analysis, and the parties’ 

arguments, are concerned only with whether Plaintiff is capable of earning his pre-injury wages at 

any other employment (Hilliard factor 2). 
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Opinion of the Court

10

the employer to show the employee is capable of suitable employment. See Smith v. 

Sealed Air Corp., 127 N.C. App. 359, 361, 489 S.E.2d 445, 446-47 (1997). Suitable 

employment is “any job that a claimant is capable of performing considering his age, 

education, physical limitations, vocational skills and experience.” Shah v. Howard 

Johnson, 140 N.C. App. 58, 68, 535 S.E.2d 577, 583 (2000) (internal marks and 

citation omitted). 

However, “[t]he fact that an employee is capable of performing employment 

tendered by the employer [post-injury] is not, as a matter of law, an indication of 

plaintiff’s ability to earn wages.” Saums v. Raleigh Community Hospital, 346 N.C. 

760, 763, 487 S.E.2d 746, 749 (1997). For example, make-work positions are those 

which have been “so modified because of the employee’s limitations” that they do not 

“accurately reflect the [employee]’s ability to compete with others for wages.” Peoples 

v. Cone Mills Corp., 316 N.C. 426, 438, 342 S.E.2d 798, 806 (1986). Central to 

determining whether employment constitutes make work is whether or not the postinjury job is “ordinarily available on the competitive marketplace.” Id. at 437-38, 342 

S.E.2d at 805-06 (reasoning earning capacity “must be measured . . . by the 

employee’s own ability to compete in the labor market, . . . [because] [w]ages paid by 

an injured employee out of sympathy, or in consideration of his long service with the 

employer, clearly do not reflect his actual earning capacity[]”); Id. (“The ultimate 

objective of the disability test is . . . to determine the wage that would have been paid 
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Opinion of the Court

11

in the open market under normal employment conditions to [the employee] as 

injured.”) (emphasis in original). Indeed, “[i]f the proffered job is generally available 

in the market, the wages earned in it may well be strong, if not conclusive, evidence 

of the employee’s earning capacity.” Id. at 440, 342 S.E.2d at 807. 

B. Plaintiff’s Challenges to Full Commission Opinion 

We now turn to whether the Full Commission correctly applied the law when 

it concluded that Plaintiff was barred from disability benefits based on its findings, 

addressing each of Plaintiff’s three challenges on point in turn.

i. Reasonable Effort

Plaintiff claims he demonstrated a reasonable but unsuccessful effort to obtain 

employment under the second Russell factor. He argues the Commission erred as a 

matter of law in concluding otherwise, and its findings as to these issues were not 

supported by competent evidence. 

Though there is no general rule for determining the reasonableness of an 

employee’s job search, see Gonzalez v. Tidy Maids, Inc., 239 N.C. App. 469, 478, 768 

S.E.2d 886, 894 (2015), the Commission is “free to decide” whether an employee made 

a reasonable effort to obtain employment, see Perkins v. U.S. Airways, 177 N.C. App. 

205, 214, 628 S.E.2d 402, 408 (2006). On appeal, this Court defers to the Commission 

in its determination of whether or not a claimant engaged in a reasonable job search, 

so long as: (1) the Commission’s conclusion is based upon findings that are not 
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Opinion of the Court

12

conclusory and sufficiently explains its determination; and (2) such findings are 

supported by competent evidence. Patillo v. Goodyear Tire & Rubber Co., 251 N.C. 

App. 228, 239-41, 794 S.E.2d 906, 914 (2016). Consistent with this deferential 

approach, this Court has previously affirmed the Commission’s conclusion that an 

employee established a reasonable but unsuccessful effort to find employment when 

he remained employed by his current employer. Snyder v. Goodyear, 252 N.C. App. 

265, 796 S.E.2d 539, 2017 WL 900050 (2007) (unpublished).2

Here, the Commission’s findings were supported by competent evidence and 

not conclusory. The Commission found:

36. Although he submitted a job list, Plaintiff 

testified he has not looked for work outside of DefendantEmployer’s business nor has he filed any applications with 

any employer because he likes who he is working for and 

enjoys working for Defendant-Employer. Plaintiff 

remained employed with Defendant-Employer as of the 

date of the hearing before the Deputy Commissioner. 

 

2 Plaintiff argues Snyder and a Deputy Commissioner opinion in Gregory S. Carpenter v. 

Commonscope Holding Co., Inc., Op. Award, I.C. No. X30121 (N.C.I.C. Oct. 13, 2014) stand for the 

proposition that “there is no requirement in the law that an employee attempt to obtain employment 

elsewhere . . . if the employee continues to work with the employer in a make work job.” This argument 

has two shortcomings. First, neither decision constitutes binding precedent. See Musi v. Town of 

Shallotte, 200 N.C. App. 379, 383, 684 S.E.2d 892, 896 (2009) (explaining that stare decisis mandates

decisions by one court binds courts of the same or lower rank); N.C. R. App. P. 30(e)(3) (2019) 

(articulating the non-precedential value of unpublished opinions). Second, Snyder is first and foremost 

rooted in deference to a well-reasoned Full Commission reasonable effort determination. Snyder at 

*12 (“[O]ur holding is simply that, based on our limited standard of review, the Commission’s 

unchallenged findings of fact support its determination that Plaintiff made reasonable efforts to find 

employment under the specific facts of this case.”).
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Opinion of the Court

13

This finding, under these circumstances, provides a sufficient basis for the 

Commission’s determination that Plaintiff did not engage in a reasonable job search. 

As in Snyder, we affirm the Commission’s well-reasoned conclusion of law, which, on 

this occasion, holds that Plaintiff failed to establish he is disabled under the second 

Russell method.

ii. Futility

Plaintiff next argues that the Commission erred in concluding that Plaintiff 

did not prove disability through a showing of futility because he brought forward “no 

evidence” on this point. 

Under Russell, an employee may meet his burden of proving disability by 

showing “the employee is capable of some work, but that it would be futile because of 

preexisting conditions, i.e., age, inexperience, lack of education, to seek other 

employment.” 108 N.C. at 766, 425 S.E.2d at 457; see also Wilkes v. City of Greenville, 

243 N.C. App. 491, 500, 777 S.E.2d 282, 289 (2015), rev. allowed, writ allowed, 784 

S.E.2d 468 (N.C. 2016), aff’d as modified, 369 N.C. 730, 799 S.E.2d 838 (2017) 

(holding employee met his burden of proof that it was futile to seek sedentary 

employment when he had a tenth grade education, was 60 years old, had an IQ of 65, 

and was physically incapable of performing previous job); Thompson v. Carolina 

Cabinet Co., 223 N.C. App. 352, 357, 734 S.E.2d 125, 128 (2012) (concluding it would 

be futile for the claimant to seek other employment because he was 45 years old, had 
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Opinion of the Court

14

only completed high school, his work experience was limited to heavy labor jobs, and 

he was restricted to lifting no more than 15 pounds); Johnson v. City of Winston 

Salem, 188 N.C. App. 383, 392, 656 S.E.2d 608, 615 (2008) (holding that evidence 

tended to show that effort to obtain sedentary light-duty employment, consistent with 

doctor’s restrictions, would have been futile given plaintiff’s limited education, 

limited experience, limited training, and poor health); Weatherford v. Am. Nat’l Can 

Co., 168 N.C. App. 377, 383, 607 S.E.2d 348, 352-523 (2005) (upholding Commission’s 

conclusion that plaintiff was disabled under prong three based on plaintiff’s evidence 

that he was 61, had only a GED, had worked all of his life in maintenance positions, 

was suffering from severe pain in his knee, and was restricted from repetitive 

bending, stooping, squatting, or walking for more than a few minutes at a time). 

In the present case, on the claim of futility, the Commission found:

37. Based upon a preponderance of the evidence 

in view of the entire record, the Full Commission finds that 

Plaintiff has failed to show that he is disabled. . . . He has 

not . . . shown that it would be futile due to preexisting 

factors to search for work.

And then concluded:

5. Furthermore, Plaintiff has not otherwise 

proven that he is disabled. . . . No evidence was presented 

that Plaintiff is capable of some work, but that seeking 

work would be futile because of preexisting conditions, 

such as age, inexperience, or lack of education, to seek 

employment.

However, the Commission also found: 
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Opinion of the Court

15

1. At the time of the hearing before the Deputy 

Commissioner, Plaintiff was forty-nine years old. Plaintiff 

has a ninth-grade education and has worked primarily in 

the construction industry building houses or as a pipefitter. 

2. Plaintiff began working for DefendantEmployer on June 4, 2007 as a pipefitter and he has been 

employed by Defendant-Employer since that date. 

. . . 

16. On March 21, 2016, Dr. Jaffe assigned 

Plaintiff permanent restrictions of no lifting more than 

twenty pounds, alternate sitting and standing, no bending, 

and to wear a brace while working. . . . 

. . . 

21. With regard to Plaintiff reaching maximum 

medical improvement, on 2 June 2017, Dr. Jaffe recorded 

that it was his opinion, . . . There are some days [Plaintiff] 

needs to leave work because of increased pain. 

It is unclear how the Commission concluded that Plaintiff presented “no 

evidence” on futility given its findings reflect factors our appellate courts have found 

to support a finding of futility. Plaintiff’s circumstance is quite similar, for example, 

to that of the employee in Thompson in the respective parties’ ages, work experience, 

educational attainment, and work restrictions.3 Plaintiff is 52 years old, 49 years old 

 

3 Neither the employee in Thompson nor any of the employees in the cases cited above 

benefited from a presumption of disability. Each of the employees met their burden of proving 

disability through a showing of futility under Russell and through Medlin. See, e.g., Thompson, 223 

N.C. App. at 356, 734 S.E.2d at 127 (“In the instant case, plaintiff has met his initial burden to show 

that he was totally disabled from September 10, 2008 and continuing, by showing that a job search 

would be futile in light of his physical and vocational limitations.”).
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Opinion of the Court

16

at the time of the hearing, has a ninth-grade education, has worked primarily in the 

construction industry building houses or as a pipefitter, and has been employed by 

Defendant for over ten years. See Thompson, 223 N.C. App. at 359, 734 S.E.2d at 129 

(“[P]laintiff was, at the time of [the Commission’s] decision, 45 years old, had only 

completed high school, and his work experience was limited to heavy labor jobs.”). 

Plaintiff suffers from a ten percent permanent partial disability, which restricts him 

from lifting anything over 20 pounds and bending, and there “are some days 

[Plaintiff] needs to leave work because of increased pain.” Id. (“[Plaintiff] was 

restricted to lifting no more than 15 pounds. . . . He was required to avoid repetitious 

bending, lifting, and twisting. . . . Further, plaintiff was experiencing steady pain, 

although that pain varied greatly in intensity.”). These findings clearly constitute 

evidence consistent with a holding of disability as they implicate every factor stressed 

in Russell’s discussion of futility. 108 N.C. at 766, 425 S.E.2d at 457 (“[I]t would be 

futile because of preexisting conditions, i.e., age, inexperience, lack of education, to 

seek other employment.”).4

 

4 While Defendant argues Plaintiff possesses “marketable skills” that show he would be able 

to find employment, the Commission made no findings that support Defendant’s position. 
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Opinion of the Court

17

In short, the Commission’s conclusion that there was no evidence to support 

Plaintiff’s claim of futility reflects a misapplication of the governing precedent and is 

undermined by its own findings (and lack thereof).5

iii. Suitable Employment

We now turn to the Commission’s holding that the fabrication shop position 

was suitable employment and not make work. 

As previously discussed, makeshift positions or “made work” are those that 

have been so altered that they are not ordinarily available on the job market and thus 

are not indicative of an employee’s earning capacity; this despite the fact the 

employee may be earning the same wages or more post-injury. Peoples, 316 N.C. at 

437, 342 S.E.2d at 805. The harm the make-work inquiry aims to address is plain: 

“[i]f an employee has no ability to earn wages competitively, the employee will be left 

with no income should the employee’s job be terminated.” Id. at 438, 342 S.E.2d at 

806. 

 

5 The dissent states that we cannot review the Commission’s futility conclusion. Specifically, 

the dissent argues that finding of fact 37, which “found,” in part, that Plaintiff had not “shown that it 

would be futile . . . to search for work” “is binding upon this Court” as it was not challenged by Plaintiff 

on appeal. Griffin, infra at ___. It is well-established, however, that labels are not dispositive in our 

review of a lower court’s factual findings and conclusions of law. See State ex rel. Utils. Comm’n v. 

Eddleman, 320 N.C. 344, 352, 358 S.E.2d 339, 346 (1987) (“Proper labeling [of findings of fact and 

conclusions of law] might have made this Court’s task a little easier, but we nonetheless have been 

able to separate facts from conclusions in examining appellants’ various assignments of error.”). 

Concluding that Plaintiff had not shown futility requires legal reasoning, see discussion supra Section 

III.B.ii, and, as such, constitutes a conclusion of law. See In re Helms, 127 N.C. App. 505, 510, 491 

S.E.2d 672, 675 (1997) (“[A]ny determination requiring the exercise of judgment or the application of 

legal principles is more properly classified a conclusion of law.”). Further, the Plaintiff unmistakably 

challenges this legal reasoning, meaning it is subject to de novo review by our Court. Gregory, 212 

N.C. App. at 295, 713 S.E.2d at 74. 
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Opinion of the Court

18

Assessing whether a position exists with employers beyond a defendantemployer is an essential part of the make-work inquiry, because

[t]he Worker’s Compensation Act does not permit 

[employers] 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 employer could 

terminate at will, or . . . for reasons beyond its control. 

Peoples, 316 N.C. at 439, 342 S.E.2d at 806. Thus, we look outward to the competitive 

marketplace to determine whether or not a position “accurately reflect[s] the person’s 

ability to compete with others for wages . . . should the employee’s job be terminated.” 

Id. at 438, 342 S.E.2d at 806; see Saums, 346 N.C. at 765, 487 S.E.2d at 750 (“There 

is no evidence that employers, other than defendant, would hire plaintiff to do a 

similar job at a comparable wage.”) (emphasis added); Smith v. Sealed Air Corp., 127 

N.C. App. 359, 489 S.E.2d 445 (1997) (holding a position make work when the 

employer failed to show that there were others who would hire claimant for a similar 

job at a similar wage). 

In the instant case, the Commission’s findings and conclusion failed to address 

the central tenet of the make-work analysis: whether the job is available with 

employers other than Defendant. There is no evidence in the record and no findings 

by the Commission as to whether the fabrication shop position exists in the 

competitive job market. Furthermore, there is no evidence that any employer, other 

than Defendant, would hire Plaintiff in the same or similar job. In fact, Plaintiff 
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Opinion of the Court

19

highlighted record evidence indicating that even Defendant might not have hired him 

if not for their longstanding relationship.6 

The Commission’s assessment of whether Defendant offered Plaintiff suitable 

employment is inwardly focused. Its holding that “Defendant’s unique hiring practice 

of hiring based upon word of mouth and personal recommendations” means the 

position was “available to individuals in the marketplace” exemplifies this 

shortcoming.7 Such a conclusion defines the competitive marketplace based on 

Defendant’s admittedly idiosyncratic employment practices, i.e., if it exists with this 

employer, then it is necessarily available on the open market under normal 

conditions. This, of course, is not so. And, as noted above, the Workers’ 

Compensation Act does not find suitable positions an employee “could find nowhere 

else[,]” thus leaving him or her unemployable should his or her employer no longer 

offer said position.8 Peoples, 316 N.C. at 439, 342 S.E.2d at 806.

 

6 Mr. Younts’ testimony is particularly salient on this point, where in response to Defense 

counsel’s question, “If someone in [Plaintiff’s] position here, only being able to lift twenty pounds, 

applied for a job in the loose material side, would that discount him from [the fabrication position] 

job?” Mr. Younts testified, “Yes, it probably would . . . Not knowing him, walk – walking in off the 

street, not having any recommendations from any other employers, yes it probably would.” 

7 The narrowness of the Commission’s conception of the marketplace is underlined when it 

concedes this position’s sole connection to open competitive market is “confined to DefendantEmployer’s unique ‘advertisement[,]’” i.e., the aforementioned word of mouth and personal 

recommendations. 

8 The Commission also found that Defendant had a “regular and constant need to keep staffed” 

the position in question and did not “specifically tailor[] or create[] [it] for Plaintiff.” Though Plaintiff 

challenges whether these findings are supported by competent evidence, a review of the record shows 

Mr. Younts testified that the position was permanent, Defendant had a regular and constant need to 

keep it staffed, and Defendant did not specifically tailor the position for Plaintiff. Given that this 

Court’s duty in reviewing factual findings “goes no further than to determine whether the record 
GRIFFIN V. ABSOLUTE FIRE CONTROL

Opinion of the Court

20

IV. Conclusion

For the above reasons, we affirm the Commission’s findings and conclusion 

that Plaintiff did not make a reasonable but unsuccessful effort to obtain 

employment.

We reverse and remand for additional findings as to whether Plaintiff made a 

showing of disability since the only factual findings in the record are consistent with 

a conclusion of disability under the futility method from Russell. 

Lastly, we remand for further findings as to whether the fabrication shop 

position is available on the competitive marketplace such that it constitutes suitable 

employment.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED. 

Jude COLLINS concurs.

Judge TYSON concurs in part and dissents in part by separate opinion.

 

contains any evidence[,]” we conclude that the Commission’s findings on these points are supported by 

competent evidence. Adams v. AVX Corp., 349 N.C. at 681, 509 S.E.2d at 414. While these findings 

afford Defendant room to argue suitability on remand, they do not change the fact that the 

Commission’s analysis was improperly skewed to focus on the employer’s workplace as opposed to the 

broader marketplace.
No. COA19-461 – Griffin v. Absolute Fire Control

TYSON, Judge, concurring in part and dissenting in part.

The majority’s opinion correctly determines and properly affirms the 

Commission’s findings and conclusion that Plaintiff failed to make any reasonable 

efforts to obtain other employment. Plaintiff failed to carry and meet his burden to 

prove any disability. 

Overruling the Commission’s unchallenged findings and conclusion by 

asserting a double-negative burden on Defendant to disprove disability through a 

showing of non-futility is error. This Court cannot disregard our appellate standard 

of review and substitute new fact findings on the evidence. 

It is unnecessary to address either the futility or suitable employment 

arguments. Remand is unnecessary. Applying the correct appellate standard of 

review and long-established burdens on the Plaintiff, I vote to affirm the 

Commission’s findings and conclusions of law in the Commission’s opinion and award 

in their entirety. I concur in part and respectfully dissent in part. 

I. Standard of Review

The Supreme Court of North Carolina, and applied by this Court long ago, 

established the proper appellate standard of review of the Industrial Commission’s 

opinion and award. An appellate “[c]ourt’s duty goes no further than to determine 

whether the record contains any evidence tending to support the finding.” 

Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 660, 689 S.E.2d 582, 

584 (2008) (citation and quotations omitted). 
GRIFFIN V. ABSOLUTE FIRE CONTROL

TYSON, J., concurring in part and dissenting in part

- 2 -

“The Commission is the sole judge of the credibility of the witnesses and the 

weight to be given their testimony.” Anderson v. Lincoln Constr. Co., 265 N.C. 431, 

433-34, 144 S.E.2d 272, 274 (1965). “It is the duty of the Commission to decide the 

matters in controversy and not the role of this Court to re-weigh the evidence.” Starr 

v. Gaston Cty. Bd. Of Educ., 191 N.C. App. 301, 305, 663 S.E.2d 322, 325 (2008). 

II. Futility

The Commission’s unchallenged finding of fact thirty-seven states: 

Based upon a preponderance of the evidence in view of the 

entire record, the Full Commission finds that Plaintiff has 

failed to show that he is disabled. To the contrary, a 

preponderance of the evidence shows that Plaintiff is able 

to earn his pre-injury wages with Defendant-Employer in 

a suitable position that is within his permanent work 

restrictions. Furthermore, none of Plaintiff’s treating 

physicians have removed him from work in any 

employment. He has not made a reasonable, but 

unsuccessful search for work nor has he shown that it 

would be futile due to preexisting factors to search for 

work. Plaintiff has not proven that he is disabled in 

employment outside of his employment with DefendantEmployer. 

This finding of fact is supported by competent evidence in the record, is not 

challenged by Plaintiff, and is binding upon this Court on appeal. The majority’s 

opinion disregards long-established precedents and purports to substitute, re-cast, 

and re-weigh the evidence before the Commission to arrive at its conclusion. The 

Commission, not this Court, is the “sole judge of the weight and credibility of the 
GRIFFIN V. ABSOLUTE FIRE CONTROL

TYSON, J., concurring in part and dissenting in part

- 3 -

evidence.” Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 

(2000). 

The majority’s opinion seeks to re-classify finding of fact thirty-seven as a 

conclusion of law, to ignore long-established precedents in treating unchallenged 

findings of fact from the Commission as binding and to disregard the appellant’s 

burden before the Commission and this Court. The majority’s opinion’s footnote cites 

a wholly inapposite juvenile neglect and dependency case. In re Helms, 127 N.C. App. 

505, 510, 491 S.E.2d 672, 675 (1997) (“[A]ny determination requiring the exercise of 

judgment or the application of legal principles is more properly classified a conclusion 

of law.”).

The very next sentence in Helms, omitted by the majority, states “[a]ny 

determination reached through ‘logical reasoning from the evidentiary facts’ is more 

properly classified a finding of fact.” Id (quoting Quick v. Quick, 305 N.C. 446, 452, 

290 S.E.2d 653, 657-58 (1982)). Unlike Helms, where the application of statutory 

legal principles was involved, unchallenged finding of fact thirty-seven does not 

involve the application of legal principles, merely “logical reasoning from the 

evidentiary facts,” and is correctly designated as an unchallenged and binding on 

appeal finding of fact. Id. 

Beyond the error of improperly classifying and re-weighing the evidence, the 

majority opinion’s analysis and application of Russell v. Lowes Product Distribution, 
GRIFFIN V. ABSOLUTE FIRE CONTROL

TYSON, J., concurring in part and dissenting in part

- 4 -

108 N.C. App. 762, 425 S.E.2d 454 (1993), is erroneous. All of the cases cited in the 

majority’s opinion found competent evidence in their records to uphold the 

Commission’s findings, properly applying the standard of review and the 

requirements of Russell to show futility. See Wilkes v. City of Greenville, 243 N.C. 

App. 491, 500, 777 S.E.2d 282, 289 (2015) (upholding the futility of seeking 

employment when plaintiff was sixty years old, had an IQ of 65, read at a second 

grade level, and was physically unable to complete the work), aff’d as modified, 369 

N.C. 730, 799 S.E.2d 838 (2017); Thompson v. Carolina Cabinet Co., 223 N.C. App. 

352, 359, 734 S.E.2d 125, 129 (2012) (upholding the futility of a forty-five year old, 

who completed high school, was restricted to lifting no more than fifteen pounds, and 

whose prior work experience was limited to heavy labor jobs); Johnson v. City of 

Winston-Salem, 188 N.C. App. 383, 392, 656 S.E.2d 608, 615 (2008) (upholding the 

futility of finding a job of a thirty-eight-year-old high school graduate with conflicting 

testimony regarding futility); Weatherford v. Am. Nat’l Can Co., 168 N.C. App. 377, 

383, 607 S.E.2d 348, 352-53 (2005) (upholding the futility of a sixty-one-year-old 

maintenance worker who had retired due to inability to work due to knee pain). 

Our Supreme Court in Wilkes examined a similar issue regarding futility when 

it also upheld the findings and an award of the Commission that it was futile for that 

plaintiff to seek sedentary employment. The plaintiff in Wilkes had a tenth-grade 

education, was over the age of sixty years old, and had a limited IQ of 65. Wilkes, 369 
GRIFFIN V. ABSOLUTE FIRE CONTROL

TYSON, J., concurring in part and dissenting in part

- 5 -

N.C. at 745, 799 S.E.2d at 849. Our Supreme Court upheld the Commission’s findings 

concerning how anxiety and depression affected his ability to work but remanded for 

additional findings related to his compensable tinnitus. Id. at 746, 799 S.E.2d at 850. 

The findings related to his alleged compensable tinnitus were absent from the 

conclusion that the plaintiff was disabled. Id. at 747-48, 799 S.E.2d at 850.

Here, the Commission found no evidence of Plaintiff showing it “would be futile 

due to pre-existing factors to search for work” as a result of Plaintiff’s only complained

of injury. The Commission also made no bifurcated analysis and made only one 

conclusion which included all of Plaintiff’s alleged injuries. No other unaddressed 

injury exists upon which to remand to the Commission for further findings. The 

holding in Wilkes is inapposite and does not support the majority’s conclusion. See id.

The Court in Wilkes relied, in part, on Peoples v. Cone Mills Corp., where our 

Supreme Court held: “In order to prove disability, the employee need not prove he 

unsuccessfully sought employment if the employee proves he is unable to obtain 

employment.” Peoples v. Cone Mills Corp., 316 N.C. 426, 444, 342 S.E.2d 798, 809 

(1986) (emphasis supplied). Under Peoples, Plaintiff, not Defendant, carries the 

burden to provide evidence of the futility of his established duty to find work, where 

disability has not been proven. Id. We all agree and concur in the Commission’s 

finding and conclusion that Plaintiff failed to make any reasonable efforts to obtain 

other employment.
GRIFFIN V. ABSOLUTE FIRE CONTROL

TYSON, J., concurring in part and dissenting in part

- 6 -

Here, the Commission found Plaintiff remains employed in a job at his original 

employer performing work his physician had approved at “his pre-injury wages,” and 

hours, where he had been working for the past five years. Plaintiff, not his employer, 

carries the burden to prove he was unable to find work. Id. Nothing in the record 

supports the conclusion that Plaintiff made any effort to meet or carry this burden or 

demonstrate futility. See id. 

In Russell, this Court upheld the Commission’s findings of futility when a 

thirty-five-year-old fork-lift operator with a high school equivalency degree could no 

longer bend forward, engage in overhead activity, stand or sit for prolonged periods 

of time, or engage in prolonged lifting of any weight greater than twenty-five pounds.

Russell, 108 N.C. App. at 766, 425 S.E.2d at 457. 

In Thompson, our Court upheld the Commission’s finding of futility where the 

claimant was a forty-five-year-old high school graduate who could not lift more than 

fifteen pounds. Thompson, 223 N.C. App. at 359, 774 S.E.2d at 129. This Court 

concluded “the Commission’s findings are sufficient to support its conclusion that 

plaintiff met his burden of showing futility.” Id.

By re-weighing the evidence, and comparing the characteristics and injuries of 

Plaintiff, the majority’s opinion misconstrues and misapplies the holding of Russell 

and its progeny by ignoring an unchallenged and binding finding of fact, 

“rummage[ing] through the record” to support its notion to shift the burden and to 
GRIFFIN V. ABSOLUTE FIRE CONTROL

TYSON, J., concurring in part and dissenting in part

- 7 -

re-weigh the evidence to reach a contrary finding. Dogwood Dev. & Mgmt. Co., LLC 

v. White Oak Transp. Co., 192 N.C. App. 114, 118, 665 S.E.2d 493, 497 (2008) (citation 

omitted). 

Compounding this error of burden shifting and factual comparisons, the 

majority’s opinion further disregards long-established precedents from our Supreme 

Court. Our Supreme Court held: “The relevant inquiry under G.S. 97-29 is not 

whether all or some persons with plaintiff’s degree of injury are capable of working 

and earning wages, but whether plaintiff herself has such capacity.” Little v. Anson 

Cty. Schs. Food Serv., 295 N.C. 527, 531, 246 S.E.2d 743, 746 (1978). 

The majority’s opinion applies broad generalizations based upon re-weighing 

characteristics and capabilities, instead of the individualized analysis our Supreme 

Court articulated in Little, and as the Commission correctly applied here. In all the 

above cases, the Court upheld the findings and a conclusion of disability by the 

Commission. See id. 

This Court also upheld the Commission’s finding of futility in Johnson, where 

there had been conflicting testimony before the Commission regarding futility. 

Johnson, 188 N.C. App. at 392, 656 S.E.2d at 615. In Weatherford, the treating 

physician testified that if the plaintiff had not retired, the plaintiff would not have 

been allowed to continue to work. Weatherford, 168 N.C. App. at 383, 607 S.E.2d at 
GRIFFIN V. ABSOLUTE FIRE CONTROL

TYSON, J., concurring in part and dissenting in part

- 8 -

352-53. Our Court upheld the Commission’s finding of disability when the worker 

retired after unsuccessfully attempting to return to work due to knee pain. Id.

Unlike cases cited in the majority’s opinion which all uphold and support the 

Commission’s finding of futility, the majority’s opinion disregards the standard of 

appellate review, shifts the burden to the employer to prove a double negative, reweighs the evidence, and overrules the Commission’s findings and conclusions. 

Plaintiff testified to the background of how he had sustained his injury and his 

ability to continue working as a pipe fitter. Since his injury, Plaintiff continues to 

work with Defendant at the same hours and wages with his physician’s approval. We 

all agree the Full Commission correctly found and concluded Plaintiff is not disabled 

and had made no efforts to obtain other employment. Nothing suggests Plaintiff 

searched for and cannot find a job. No evidence shows he would not be able to find a 

job to fit his limitations, experience, and education after having been employed and 

working. 

The majority’s opinion unlawfully purports to shift and place a burden upon 

Defendant to prove competitive jobs exist in the market for which Plaintiff is qualified 

and can physically accomplish. This shifting of burden is error. Unless Plaintiff 

initially meets his prima facie case of proving disability, Defendant has no burden for 

production or proof. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 

683 (1982). Plaintiff continues to work for his same employer at the same pre-injury 
GRIFFIN V. ABSOLUTE FIRE CONTROL

TYSON, J., concurring in part and dissenting in part

- 9 -

wages and hours with his physician’s restrictions. We all agree Plaintiff failed to 

make any reasonable efforts to obtain other employment, and Plaintiff failed to carry 

and meet his burden to prove any disability. 

III. Conclusion

Competent evidence in the whole record supports the Commission’s 

unchallenged finding and conclusion that Plaintiff had not carried his burden to 

demonstrate disability or any futility to search for other suitable employment. The 

Commission’s opinion and award is supported by undisputed facts: Plaintiff continues 

to work with his original employer, at his pre-injury hours, with his pre-injury 

schedule, and within his physician’s restrictions. The Full Commission’s findings of 

fact are unchallenged, and its conclusions and award is supported by competent 

evidence.

As the “sole judge of the weight and credibility of the evidence” the 

Commission’s opinion and award is properly affirmed in its entirety. Deese, 352 N.C. 

at 116, 530 S.E.2d at 553. The majority’s opinion disregards the appellate standard 

of review of the Commission’s order, shifts and imposes a burden of proof upon 

Defendant without proof of disability, re-weights the evidence, and misapplies 

controlling precedents. See id. I vote to affirm the Commission’s opinion and award 

in its entirety and respectfully dissent.