IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-30

No. COA21-316

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 award 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 Christa Sumwalt, for plaintiffappellant.

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. Background
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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, plaintiff 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. While checking the emergency windows, plaintiff “placed her left knee 

and part of her body weight on [a] bus seat and leaned towards the windows.” 

Because the floor of the bus was wet and slippery, when plaintiff “stepped back with 

her right foot to reenter 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 interfered with 

her work. Thereafter, plaintiff reported the injury to her supervisor, who instructed 

plaintiff to seek treatment at “Med First Immediate Care and Family Practice.”

 

1 Plaintiff had been diagnosed with having PTSD.
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¶ 5 Plaintiff 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 difficulty 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 occasions, 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 many 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 loss in the 

medial compartment and a root tear avulsion of the posterior horn of the medial 

meniscus.” On 14 January 2019, 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.”
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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 replacement on 

March 21, 2019, but . . . had to reschedule it because of the availability 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 Lori A. Gaines (the “Deputy Commissioner”) on 14 June 2019. 

At that time, “[p]laintiff was waiting to schedule the partial knee replacement 

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 her 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 professionals 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, the Deputy Commissioner 

concluded that plaintiff had proven her injury was caused by an accident, and, 
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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 workrelated accident and the injuries to her low back and right knee.” Then, 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 “met 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 Deputy 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, 2016 injuries.”
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¶ 12 The Deputy Commissioner awarded plaintiff the following: that defendantemployer “shall pay temporary total disability compensation to plaintiff at the rate of 

$131.24 per week2 for the period from November 15, 2016 and continuing until 

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 2020 to the Full Commission. 

The appeal was heard on 21 July 2020.

¶ 14 In an Opinion and Award filed 3 March 2021, the Commission found, among 

other things, that plaintiff was 51 years old at the time of the 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 before 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. Plaintiff had returned to work on 15 November 2016, but was 

relieved by her supervisor due to pain; thereafter, she never worked again. The 

Commission also found that, between November 2016 and November 2019, plaintiff 

underwent multiple medical examinations with multiple doctors, which included 

MRIs, physical therapy, injection therapy, referrals, use of a knee brace, and 

recommendations for surgery.

¶ 16 The Commission found that, at the time of the hearing, plaintiff had not yet 

undergone surgery “for various reasons, including a complication 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 exhibits regarding plaintiff’s work status as 

being described as “[u]nable to work secondary to dysfunction.”

¶ 17 Then, the Commission found, “[b]ased upon the preponderance of the evidence 

in view of the entire 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 then 
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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 between 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 proving she had a disability as a result of her injuries. The 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: “To 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”:
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(1) the production of medical evidence that [plaintiff] is 

physically or mentally, as a consequence of the work 

related injury, incapable 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]he 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 that earned prior to the injury.

(Alterations in original.) Then, however, the Commission followed this by stating:

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

and . . . has not otherwise presented evidence 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 to 
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either effect a cure or provide relief.” Then, the Commission denied “plaintiff’s claim 

for temporary total disability 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 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.” 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 evidence 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 insufficient 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[,] considering her restrictions from 

the injury combined with preexisting factors unrelated to the injury[,] under the third 
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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 term ‘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) (2021). “Under Russell,” specifically 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 766, 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 times 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 work 
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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 the discord between the Commission’s findings of fact 

and its conclusion, stating: “It 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 support 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 have 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 given [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 his life in maintenance positions, was suffering 

from severe pain in his knee, and was restricted from repetitive bending, stooping, 
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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 In 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, equivalent to less than minimum wage. See id. at 202, 837 S.E.2d at 427

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

¶ 32 The record also reflects 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 avoid 
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lifting more than 20 pounds. Then, plaintiff underwent innumerable medical 

evaluations and procedures, including 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 considering 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 The Commission’s conclusion that plaintiff presented no evidence of disability

ignores the evidence plaintiff 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

was capable of some work following her injury, it would be futile to seek other 

employment at the 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 766, 425 S.E.2d at 457).
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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 conclusion that plaintiff 

failed to present any evidence showing disability. See id. at 203-204, 837 S.E.2d at 

428. Accordingly, we must vacate 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.