IN THE COURT OF APPEALS OF NORTH CAROLINA
2022

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- 30 No. COA 21

- 316 Filed 18 January 2022
I.C. No. 16

- 762129 WENDY MONROE , Employee, Plaintiff,

v. MV TRANSPORTATION , Employer, SELF

- INSURED ( BROADSPIRE, Third

- Party Administrator ) Defendant

. Appeal by plaintiff from opinion and awar d entered 3 March 2021 by the North Carolina Industrial Commission

. Heard in the Court of Appeals 15 December 2021

. The Sumwalt Group, by Vernon Sumwalt and Christ a Sumwalt, for plaintiff

appellant

. Wilson Ratledge , PLLC, by Kristine L. Prati , for defendant

- appellee.

ARROWOOD , Judge.

¶ 1 Wendy Monroe (“plaintiff”) appeals from the North Carolina Industrial Commission’s (the “Commission”) opinion and award concluding plaintiff had not satisfied her burden of proof to establish that she was entitled to disability benefits. For the following reasons, we vacate the Commission’s opinion and remand for additional findings

. I. BackgroundM ONROE V
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¶ 2 Plaintiff began working for MV Transportation (“defendant

- employer” ) in April 2016 as a part

- time dispatcher and bus driver, where she earned $10.50 per hour. At the time, pl aintiff was in her late forties, had a bachelor’s degree, and had been receiving Social Security disability benefits since 1994 for an unrelated medical condition. 1 ¶ 3 Around 5:00 a.m. on 4 November 2016, plaintiff was performing a routine bus inspection

. W hile checking the emergency window s , plaintiff “placed her left knee and part of her body w e ight on [a] bus seat and leaned towards the window s .” Because the floor of the bus was wet and slipper y , when plaintiff “ stepped back with her right foot to re enter the bus aisle, she lost her footing, hit her left shin, and twisted her back and right knee.” Plaintiff was able to catch herself, but “ended up leaning slightly backwards in an awkward position, with her left knee still on the seat.”
¶ 4 Initially , plaintiff did not report the incident as she thought she had merely lightly injured her shin. However, “[ w]ithin an hour ” of the incident, plaintiff noticed “back pain, left shin pain, and pain in both her knees[,]” all of which interfer ed with her work. Thereafter, plaintiff reported the injury to her supervisor, who instructed plaintiff to see k treatment at “Med First Immediate Care and Family Practice.”

1 Plaintiff had been diagnosed with having PTSD.M ONROE V
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¶ 5 P laintiff made multiple visits to Med First Immediate Care and Family Practice

. Plaintiff complained of pain in her lower back and knees; x

- rays were performed on her lumbar spine , which “showed spondylosis , ” and on her knees, which “were both negative.” On 7 November 2016, plaintiff “attempted to work, but had so much pain and dif

ficulty that she returned to Med First ” and was referred to the
emergency room . Plaintiff received various restrictions for her work, including, among others, alternating between sitting and standing , and avoiding lifting over 20 pounds. On a few occasio ns , plaintiff tried returning to work ; however, she continued to experience pain and was ultimately relieved by her supervisor on
15 November 2016

. After that, plaintiff never returned to work.
¶ 6 For the three years that followed, plaintiff attended ma ny medical appointments, throughout which she was given multiple referrals, as well as physical therapy and injection therapy to manage her persistent pain. Particularly, an MRI of her right knee performed 15 February 2018 revealed “complete cartilage los s in the medial compartment and a root tear avulsion of the posterior horn of the medial meniscus.” O n 14 January 201 9 , plaintiff “presented with severe progressive right knee pain[,]” which she found at times intolerable , and “ walked with a limp” ; at this point, a doctor deemed plaintiff “an appropriate candidate for a right total knee arthroplasty.”M ONROE V
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¶ 7 After seeking opinions regarding partial knee replacement surgery versus a full knee replacement, plaintiff “was scheduled for a partial knee repl acement on March 21, 2019, but

. . . had to reschedule it because of the availab ility of a home health care nurse.” The surgery was then scheduled for 11 April 2018 ; however , due to a “miscommunication” and “complication with one of her medications,” the surgery was canceled.
¶ 8 Plaintiff’s claim , which was originally denied, was ultimately heard before Deputy Commissioner Lo ri A. Gaines ( the “Deputy Commissioner”) on 14 June 2019

. At that time, “[p]laintiff was waiting to schedule the partial knee repl acement surgery.”
¶ 9 At the hearing, plaintiff introduced as her exhibits, among other things, medical records pertaining to her injury. Many of these medical records showed that multiple medical providers described plaintiff ’s “work status” following h er injury as: “Unable to work secondary to dysfunction.” After the hearing, “the parties took depositions of Dr. Arlene Hallegado, Stephen Free, PA

- C, and Dr. Robert Boswell.” During their respective depositions, all three medical professional s opined that they would have recommended work restrictions for plaintiff as a result of her injury and ongoing treatment.
¶ 10 In an opinion and award filed 7 February 2020, t he Deputy Commissioner concluded that plaintiff had proven her injury was caused by an accident, and ,M ONROE V
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“[b]ased upon a preponderance of the evidence in view of the entire record,

. . . that [p] laintiff ha[d] proven a causal connection between her November 4, 2016 work

related accident and the injuries to her low back and right knee.” The n, the Deputy Commissioner found that “[f]rom November 7, 2016 to November 14, 2016 until her release to limited duty with restrictions, [p] laintiff was written entirely out of work.” “Therefore,” the Deputy Commissioner concluded that plaintiff had “m et her burden of proving disability for that period of time.”
¶ 11 The Deputy Commissioner continued:

Plaintiff was given limited duty restrictions on November 11, 2016 but was not written out of work after that date. However, in order to determine Plaintiff’s loss of wage

- earning capacity, the Commission must take into account the significant restrictions Plaintiff has been provided, her age, her work history, her ongoing back and right knee pain, and her education

. . . . Taking these factors into account, the undersigned concludes that because of her compensable injuries, Plaintiff has been unable to earn wages in the same or similar employment, and therefore she is entitled to total disability compensation beginning November 15, 2016, and continuing until she returns to work, until further order of the Industrial Commission, or until compensation is otherwise legally terminated. (Emphasis added.) Then, the Depu ty Commissioner concluded that plaintiff was “entitled to medical compensation for such treatment as is reasonably necessary to effect a cure, provide relief, or lessen the period of disability associated with [her] conditions related to the November 4, 20 16 injuries.”M ONROE V
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¶ 12 The Deputy Commissioner awarded plaintiff the following: that defendant

employer “ shall pay temporary total disability compensation to plaintiff at the rate of $131.24 per week 2 for the period from November 15, 2016 and continuing unti l plaintiff returns to work or further order of the Commission, [ and ] any amounts having accrued shall be paid in lump sum ”; that plaintiff was entitled to have defendant

- employer “ provide all medical treatment , incurred or to be incurred, necessitated by the compensable 4 November 2016 injuries by accident, including but not limited to the proposed surgery for plaintiff’s right knee replacement surgery ”; and “[a] reasonable attorney’s fee in the amount of twenty

- five percent

. . . .”
¶ 13 Defendant filed notice of appeal on 10 February 20 2 0 to the F ull Commission. The appeal was hear d on 21 July 2020. ¶ 14 In a n O pinion and A ward filed 3 March 2021, the Commission found, among other things, that plaintiff was 51 years old at the time of th e second hearing , had begun working for defendant

- employer in 2016 as a part

- time dispatcher and bus driver, where she earned $10.50 per hour , and had been receiving Social Security disability benefits for an unrelated medical condition since 1994

. ¶ 15 The Commission found that , on 4 November 2016 , plaintiff incurred an injury

as described b efore the Deputy Commissioner , as a result of which plaintiff received

2 This monetary amount was consistent with plaintiff’s weekly compensation rate of $131.24 , derived from her average weekly wage of $196.86 while employed by defendant

- employer

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work restrictions

. P laintiff had returned to work on 15 November 2016, but was relieved by her supervisor due to pain ; there after , she never worked again. The Commission also found that, between November 2016 and November 2019 , plaintiff underwent multiple medical examinations with multiple doctors, whi ch included MRIs, physical therapy, injection therapy, referral s, use of a knee brace, and recommendations for surgery

. ¶ 16 T he Commission found that , at the time of the hearing, plaintiff had not yet undergone surgery “for various reasons, including a c omplication with her medications and a miscommunication with scheduling,” but intended to do so. The Commission also found plaintiff had not looked for work, or “worked in any capacity,” since 15 November 2016. The Commission made no findings pertaining to the medical records included in plaintiff’s exhibit s regarding plaintiff’s work status as being described as “[u]nable to work secondary to dysfunction.”
¶ 17 Then, t he Commission found, “[b]ased upon the preponderance of the evidence in view of the en tire record,” that plaintiff’s “low back and right knee conditions and current need for treatment [we]re causally related to her incident at work on November 4, 2016.” It further found that plaintiff’s “treatment for her low back and right knee conditions , and her need for additional treatment, [were] reasonably necessary to effect a cure or provide relief of [her] conditions.” The Commission thenM ONROE V
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found that, although plaintiff “ha[d] some work restrictions related to her low back and right knee conditions[,]

. . . she is not restricted from all work.”
¶ 18 The Commission concluded plaintiff’s 4 November 2016 incident constituted an “accident” under North Carolina law, and that plaintiff had “met her burden of proving a causal relationship betwee n her medical conditions and the accident.” Thus, “plaintiff [wa]s entitled to payment of medical treatment for her right knee and low back conditions, including pain management for her low back and orthopedic treatment for her right knee, for so long as such treatment is reasonably necessary to either effect a cure or provide relief.”
¶ 19 Next , the Commission addressed the issue of whether plaintiff had met her burden of prov ing she had a disability as a result of her injuries. T he Commission stated: “ The burden of proof rests with [p] laintiff to establish disability as a result of her compensable injury .” Then, citing Hilliard v. Apex Cabinet Co. , 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982) , it continued: “T o satisfy this burden, [p] laintiff must show that, due to her compensable injury, she is incapable of earning her pre

- injury wages in her pre

- injury job or any other form of employment. ”
¶ 20 The Commission listed the following four factors, as provided by Russell v. Lowes Prod. Distrib. , 108 N .C. App. 762, 765, 425 S.E.2d 454, 457 (1993) (the “ Russell factors”) as what plaintiff may use “to establish disability”:M ONROE V
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(1) the production of medical evidence that [plaintiff] is physically or mentally, as a consequence of the work related injury, incap able of work in any employment; (2) the production of evidence that [s]he is capable of some work, but that [s]he has, after a reasonable effort on [her] part, been unsuccessful in [her] effort to obtain employment; (3) the production of evidence that [s]h e 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) the production of evidence that [s]he has obtained other employment at a wage less than th at earned prior to the injury. (Alterations in original.) Then, however, the Commission followed this by stat ing: “T he Russell factors are not exhaustive and do not preclude the Commission from considering other means of satisfying the ultimate standard of disability set forth in Hilliard

. ”
¶ 21 The Commission found that plaintiff “failed to establish that she conducted a reasonable job search after she was placed on unpaid medical leave by Defendant

Employer, ” “ ha [d] not worked in any other employment since November 15, 2016, and

. . . has not otherwise presented ev idence to establish disability .” (Emphasis added.) Accordingly , the Commission concluded that plaintiff “was not entitled to disability compensation.”
¶ 22 The Commission awarded plaintiff that defendant

- employer “pay for all medical treatment incurred or to be incurred for [p] laintiff’s compensable right knee and low back conditions

. . . for so long as such treatment is reasonably necessary toM ONROE V
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either effect a cure or provide relief.” Then, the Commission denied “plaintiff’s claim for temporary total d isability compensation[,]” as well as plaintiff’s request for attorney’s fees and defendant

- employer’s motion to dismiss.
¶ 23 Plaintiff filed written notice of appeal on 29 March 2021. II. Discussion
¶ 24 “ Our review of an opinion and award of the Commi ssion 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.” Griffin v. Absolute Fire Control, Inc. , 269 N.C. App. 193, 198, 837 S.E.2d 420, 424 (2020) (citation and quotation marks omitted) , discretionary review improvidently allowed , 376 N.C. 727 , 2021

- NCSC

- 9 . “ The findings of fact made by the Commission are conclusive on appeal if supported by competent evidence even if there is eviden ce to support a contrary finding.” Id. (citation and quotation marks omitted). “ The Commission ’ s conclusions of law are reviewed de novo

. ” Id. , 837 S.E.2d at 425 (citation omitted).
¶ 25 Plaintiff argues the Commission’s findings of fact are insufficie nt to support, and for this Court to review, the conclusion that plaintiff did not meet her burden of proving disability

. Specifically, plaintiff argues “the entire record contains evidence of the futility of making [plaintiff] look for work[,] considerin g her restrictions from the injury combined with preexisting factors unrelated to the injury[,] under the thirdM ONROE V
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Russell method.” Accordingly , plaintiff requests this Court to remand to the Commission for further findings of fact. We agree.
¶ 26 “ The te rm ‘ disability ’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment. ” N.C. Gen. Stat. § 97

- 2 (9) (20 2 1). “ Under Russell , ” spe c ifically the third Russell factor, “ an employee may meet h [er] 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. ’ ” Griffin , 269 N.C. App. at 202, 837 S.E.2d at 427 (emphasis added) (quoting Russell , 108 N.C. App. at 76 6 , 425 S.E.2d at 457 ).
¶ 27 In Griffin , we reviewed the Commission ’s opinion and award in which it had found as fact that the plaintiff in question was 49 years old, had a ninth

- grade education, had worked “primarily in the construction industry building houses or as a pipefitter[,]” had been assigned “permanent restrictions of no lifting more than twenty pounds, alternate sitting and standing, no bending, and to wear a brace while working [,]” and at time s had needed to “leave work because of increased pain.” Id. at 203, 837 S.E.2d at 427

- 28. Then, in the same award and order, the Commission, “[b]ased upon a preponderance of the evidence in view of the entire record,” concluded that the plaintiff had not shown he was disabled, because “ [ n ] o evidence was presented that [the] [p] laintiff [wa] s capable of some work, but that seeking workM ONROE V
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would be futile because of preexisting conditions, such as age, inexperience, or lack of education

. . . . ” Id. , 837 S.E.2d at 427 (emphasis added)

. ¶ 28 This Court made note of th e discord between the Commission’s findings of fact and its conclusion, stating: “I t is unclear how the Commission concluded that [the] [p] laintiff presented ‘ no evidence ’ on futility given its findings reflect factors our appellate courts have found to s upport a finding of futility. ” Id. , 837 S.E.2d at 428.
¶ 29 In fact, in Griffin , this Court listed a myriad of examples of cases in which our appellate courts ha ve previously found evidence tending to prove a plaintiff’s disability by way of futility under Russell , including: Thompson v. Carolina Cabinet Co. , 223 N.C. App. 352, 734 S.E.2d 125 (2012) , in which the plaintiff in question “ was 45 years old, had only completed high school, [had] work experience

. . . limited to heavy labor jobs, and

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

- Salem , 188 N.C. App. 383, 656 S.E.2d 608 (2008) , in which an

“ effort to obtain sedentary light

- duty employment, consistent with doctor ’ s restrictions, would have been futile giv en [the] plaintiff ’ s limited education, limited experience, limited training, and poor health ” ; and Weatherford v. Am. Nat ’ l Can Co. , 168 N.C. App. 377, 607 S.E.2d 348 (2005) , in which the plaintiff in question “ was 61, had only a GED, had worked all of hi s life in maintenance positions, was suffering from severe pain in his knee, and was restricted from repetitive bending, stooping,M ONROE V
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squatting, or walking for more than a few minutes at a time. ” Griffin , 269 N.C. App.
at 202, 837 S.E.2d at 427

. ¶ 30 I n Griffin , this Court concluded that “ the Commission ’ s conclusion that there was no evidence to support [the] [p] laintiff ’ s claim of futility reflects a misapplication of the governing precedent and is undermined by its own findings (or lack thereof)

. ” Id. at 204, 837 S.E.2d at 428 . Accordingly, we reversed and remanded the opinion in part “ for additional findings as to whether [the] [p] laintiff made a showing of disability [,] since the only factual findings in the record [we] re consistent with a conclusion of disability under the futility method from Russell

. ” Id. at 207, 837 S.E.2d
at 430. ¶ 31 Plaintiff’s case is analogous

. Plaintiff introduced the following evidence of “preexisting conditions” before the Commission: that she was in her fifties at the time the hearings began, had been receiving Social Security disability benefits unrelated to the incident in question for several decades, and, in spite of her bachelor’s degree , was working a part

- time job in transportation earning $10.50 per hour , equiv alent to less than minimum wage. See id. at 202, 837 S.E.2d at 427 (quoting Russell , 108 N.C. App. at 76 6 , 425 S.E.2d at 457 ).
¶ 32 T he record also reflect s that, after incurring her injury, from November 2016 through November 2019, plaintiff received work restrictions, including to alternate between sitting and standing, to limit stooping, bending, and twisting, and to avoidM ONROE V
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lifting more than 20 pounds. Then , plaintiff underwent innumerable medical evaluations and procedures, includ ing MRIs, referrals, physical therapy, injections, and the use of a brace , culminating in a need for surgery. Furthermore, plaintiff continued to suffer persistent and worsening pain, with her knee frequently giving
way. ¶ 33 Despite the Commission consi dering all of the above as findings of fact, it concluded that plaintiff had “ not otherwise presented evidence to establish disability .” (Emphasis added.) Moreover, the Commission made no findings whatsoever regarding plaintiff’s exhibits containing copies of medical records in which plaintiff’s “work status” following her injury was labeled as “[u]nable to work secondary to dysfunction.”
¶ 34 T he Commission’s conclusion that plaintiff presented no evidence of disability ignore s the evidence plainti ff actually introduced during both hearings . In addition to this mistake , the Commission failed to consider whether plaintiff had , under Russell , met her burden of establishing her disability by showing that, though she

wa s capable of some work following her injury , it would be futile to seek other employment at th e time due to preexisting conditions, such as age, inexperience, lack of education, or a previous disability

. See Griffin , 269 N.C. App. at 202, 837 S.E.2d
at 427 (quoting Russell , 108 N.C. App. at 76 6 , 425 S.E.2d at 457 ).M ONROE V
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¶ 35 “ [G] iven its findings reflect factors our appellate courts have found to support a finding of futility [,]” and the fact that the Commission itself cited the futility method under Russell as a means by which a plaintiff may show disability , we are unable to reconcile the Commission’s findings , “or lack thereof[,]” to its c onclusion that plaintiff failed to present any evidence showing disability

. See id. at 203

- 204 , 837 S.E.2d at
428. Accordingly , we must v acate the opinion and award and remand for additional findings as to whether , under Russell , the evidence plaintiff presented is sufficient to establish disability by way of futility. See id. at 207, 837 S.E.2d at 430. III. Conclusion
¶ 36 We vacate and remand to the Commission to make further findings under the Russell tests

. VACATED AND REMANDED

. Judges INMAN and HAMPSON concur.