McRae v. Toastmaster, Inc.

¶1dissenting.

¶2Under Seagraves v. Austin Co., 123 N.C. App. 228, 472 S.E.2d 397 (1996), this Court created a justifiable legal fiction that permits an employer to terminate an employee (who suffers from a compensable workers compensation injury) for intentional or gross misconduct. In this case, the majority seeks to expand the holding of Seagravesto allow the termination of injured employees for acts of negligence rather than intentional or gross misconduct. Because I believe such an extension fails to comport with the liberal construction accorded our Workers’ Compensation Act, I dissent.

¶3The plaintiff in this matter, Ms. Alberta McRae, functions at a fourth-grade level with an IQ of 59. Toastmasters employed her *76in 1996 to place labels on clocks on a conveyer belt. According to the full Commission, this task required Ms. McRae “to pull [approximately 1000]. . . labels off a roll [a day] and place them onto boxes.”

¶4Six months thereafter, Toastmaster reassigned Ms. McRae to the clock dial and face assembly line. According to the full Commission, this task required Ms. McRae to “insert[] the movement into the back of the clock, to turn[] the clock over and then put[] the hour and minute hands on the front of the clock. The production rate was one hundred and twenty-five clocks per hour.” After engaging in this task without incident for over a year, Ms. McRae complained of bilateral numbness. Ultimately, Dr. Mark E. Brenner performed a carpel tunnel release on her left and right upper extremities. Dr. Brenner ordered Toastmaster to permanently avoid assigning Ms. McRae to the clock dialing and face assembly line. Despite this express order, Toastmaster returned Ms. McRae to the clock dialing and face assembly position. As a direct result, Ms. McRae continued to suffer and complain of numbness and pain in her upper extremities.

¶5Thereafter, Toastmaster reassigned Ms. McRae to her previous position as an assembly line labeler and undertook for the first time, the action of “writing-up” Ms. McRae each time she failed to affix a label to a clock. After four such “write-ups,” Toastmaster terminated her employment. Three weeks after her termination, Toastmaster received a belated letter from Dr. Brenner in which he advised Toastmaster to avoid assigning Ms. McRae to tasks involving “repetitious pushing, pulling, gripping, pinching, and fingering.” As noted by the full Commission, the labeling job required Ms. McRae to repetitiously pull labels off the roll. Despite this description, and Dr. Brenner’s instructions, the full Commission concluded, and today the majority affirms, that Ms. McRae “was terminated for misconduct and she thereby constructively refused suitable employment.” In so holding and affirming, the full Commission and the majority rely on a misapprehension of the equitable legal fiction this Court created in Seagraves.

¶6In Seagraves, this Court addressed the question of whether an employee’s termination for misconduct — exposing her “buttocks to two female co-employees” — constituted a constructive refusal to accept suitable employment a voluntary forfeiture of her workers’ compensation benefits for her compensable occupational disease pursuant to N.C. Gen. Stat. § 97-32 (2002). In Seagraves, we recognized that the issue was one of first impression in North Carolina. *77Accordingly, this Court thoughtfully analyzed the divergent views of other jurisdictions, and the liberal construction accorded to North Carolina’s Workers’ Compensation Act, before adopting a general rule that where an injured employee is allegedly terminated for misconduct,

the test is whether the employee’s loss of... wages is attributable to the wrongful act resulting in loss of employment, in which case benefits will be barred, or whether such loss ... in earning capacity is due to the employee’s work-related disability, in which case the employee will be entitled to benefits for such disability. . . . The application of this rule will, we believe, best achieve fairness to all parties by assuring that an injured employee is awarded benefits for wage loss which is clearly attributable to his or her job-related disability, while protecting employers from liability to employees who engage in intentional, unacceptable conduct while employed in rehabilitative or light duty settings.

¶7Seagraves, 123 N.C. App. at 233-34, 472 S.E.2d at 401. The Seagravesmisconduct test was devised to protect employers, and the workers’ compensation system, from employees who are terminated for intentional or unacceptable conduct while occupying a rehabilitative position. Under Seagraves, the employer is no longer responsible for the employee’s diminution in wages, because the diminution was proximately caused by misconduct rather than an occupational injury or disease.

¶8Since our decision in Seagraves, we have applied the misconduct test on three occasions. In Williams v. Pee Dee Elec. Mbrshp. Corp., 130 N.C. App. 298, 502 S.E.2d 645 (1998), an employee, who suffered from a compensable injury, was terminated two days after his criminal conviction for indecent exposure. Although we remanded the case for further findings of fact, we clarified our holding in Seagravesby noting that:

First, there is no requirement that the employee’s misconduct occur during working hours or at the workplace. Second, there is no requirement that the misconduct constitute a crime. The misconduct need only be such that a non-disabled employee would ordinarily have been discharged for it. Third, a finding that the employee was discharged for misconduct “pursuant to company policy” is not sufficient to support a conclusion that the employee has constructively refused employment. The Commission must specifically find that the employee was discharged for miscon*78duct for which a non-disabled employee would ordinarily have been terminated.

¶9Williams, 130 N.C. App. at 302, 502 S.E.2d at 648.

¶10Next, in Flores v. Stacy Penny Masonry Co., 134 N.C. App. 452, 518 S.E.2d 200 (1999), an employee had missed a substantial number of work days because of an occupational disease. In one instance, however, the employee requested a day off for personal matters. The employer refused the employee’s request and terminated the employee on the basis of misconduct for failing to attend work. Because the employer “admitted that he would not have fired an employee for taking a day off to tend to personal matters, if that employee’s attendance was satisfactory,” the full Commission concluded that plaintiff’s “employment was terminated as a direct result of time missed from work over a period of several months due to his continuing disability caused by his compensable injury, and not for misconduct or other just cause.” Flores, 134 N.C. App. at 458, 518 S.E.2d at 205. On appeal, we found no error in this finding.

¶11Finally, in Frazier v. McDonald’s, 149 N.C. App. 745, 562 S.E.2d 295 (2002), we addressed whether the full Commission erred in finding that an injured employee was not terminated for misconduct where the employee was allegedly terminated because her register drawer was short by $44.83. In finding no error, we noted that it was the common practice for McDonald’s to suspend employees for a week without pay when their cash registers are short. Accordingly, we held that “competent evidence in the record [] supported] the Commission’s finding and conclusion that [McDonald’s] failed to show that plaintiff’s termination was for misconduct or fault. . . ‘for which a non-disabled employee would ordinarily have been terminated.’ ” Frazier, 149 N.C. App. at 751, 562 S.E.2d at 299.

¶12Thus, our case law interpreting and applying the Seagravesmisconduct test reveals that this Court has only applied that test in instances where an injured employee has engaged in intentional or gross misconduct. Under Seagravesthis Court created a justifiable legal fiction: An injured employee who is terminated for misconduct is considered to have constructively refused suitable employment and is barred from receiving workers’ compensation benefits. However, the SeagravesCourt went to great lengths to develop a misconduct test that “comports with the underlying purpose of North Carolina’s Workers’ Compensation Act to provide compensation to workers whose earning capacity is diminished or destroyed by injury *79arising from their employment... and the liberal construction which has long been accorded its provisions.” Seagraves, 123 N.C. App. at 233, 472 S.E.2d at 401 (citations omitted). In today’s decision the majority expands the Seagravesmisconduct test to include instances where an employee is terminated for negligence rather than intentional or gross misconduct. Where Seagravesprotected employers and the workers’ compensation system from the willful or gross misconduct of employees, the rule articulated by the majority allows employers to terminate injured employees for acts of “mere negligence” in order to avoid their responsibilities under the Workers Compensation Act.1

¶13In the case sub judiee, the record shows no evidence that Ms. McRae engaged in willful or gross misconduct. In my view, the evidence is susceptible to only two interpretations: (1) pain in her upper extremities, as documented by her treating physician, prevented Ms. McRae from performing a task she previously performed without incident, or (2) Ms. McRae negligently failed to place the labels on the clock. In either case, it is error to apply the legal fiction of Seagravesto the facts of this case, and to deprive Ms. McRae of her right to benefits under North Carolina’s Workers’ Compensation Act. I dissent.