Supreme Court Decision In Griffin v. Absolute Fire Control a Win For Injured Workers

October 14, 2021   |   Erwin Byrd

Griffin v. Absolute Fire Control, Inc.
Opinion Filed: March 12, 2021
Attorney for the Case: Christian Ayers
Amicus Brief Writers: Stewart Poisson, Erwin Byrd
Supreme Court of North Carolina No. 29A20

In Griffin v. Absolute Fire Control (29A20), the Supreme Court of North Carolina affirmed, per curiam, the Court of Appeals’ decision in this case, and thereby affirmed a big win for injured workers in North Carolina. NCAJ supported the plaintiff, Stacy Griffin, by filing an amicus brief in the Supreme Court, and NCAJ member Christian R. Ayers represented the plaintiff at trial and on appeal.

Griffin was injured on the job, and, after undergoing treatment for two years, was permanently restricted by his doctor from several physical activities, including the heavy lifting necessary to the pipefitting job he had held with defendant Absolute Fire Control for many years. Immediately after his injury defendant offered him a different job in their fabrication shop, but testified at trial that, if they hadn’t already known him, they wouldn’t have hired him to do that replacement job given his injury-related physical limitations. Griffin eventually sought a determination from the North Carolina Industrial Commission that the post-injury job defendant had given him was not suitable employment – that the job was, in other words, make work – but the commission ultimately held that he was not disabled, and that the jobs were suitable. Both of these holdings were ultimately reversed by the Court of Appeals, a decision affirmed by the Supreme Court of North Carolina.

Disability Determinations: Futility

In order to be determined disabled in North Carolina, a worker must prove three prongs of a disability test, including the only prong at issue in Griffin’s case, that the injured employee is incapable of earning the same wages he or she earned before his or her injury at any other employment. One method of proving this inability to earn comparable wages after injury is to show futility:  the injured worker may be able to do some work, but his or her age, education level, experience, or other conditions render it futile to seek alternate employment. Though the commission found that Griffin was 49 years old, had a ninth-grade education, and had only worked in construction or as a pipe fitter, it concluded that he had presented “no evidence” that seeking work would be futile because of his age, education and experience.

Relying on several previous North Carolina decisions, Judge Christopher Brook wrote for the Court of Appeals and reversed the commission, on the grounds that plaintiff’s evidence was evidence indicating futility, so their conclusion that he had presented no such evidence was a misapprehension of the law. He remanded for further findings consistent with the law. In a dissenting opinion, Judge John Tyson would have held that the court could not reach the futility question based on the standard of review. Upon review of the Court of Appeals’ decision, the Supreme Court unanimously affirmed the majority.

Suitability of Employment

            Once an employee has proven disability, the burden in disability cases shifts to the employer to show that the employee is capable of suitable employment. In this case, the employer tendered that the job Griffin had done for them for two years after his injury was suitable employment. Again, the Court of Appeals held that the commission had erred, holding that a job cannot be considered suitable unless it is available on the competitive marketplace and noting that the commission had made no findings on the availability of this job in the general labor market. The Court of Appeals remanded for further findings, another holding affirmed by the Supreme Court on appeal.

A Big Win for Injured Workers

            The Supreme Court’s per curiam affirmation of the Court of Appeals is a clarification of North Carolina employment disability law in favor of the injured worker. Advocates can use this case to show that an employee’s age, education and experience matter, and that an employer cannot escape liability by offering work not available in the general labor market to an employee injured on the job. Thank you, NCAJ member Christian Ayers for his representation of Griffin, and to NCAJ member Stewart Poisson, who partnered with me to write the amicus brief to the Supreme Court of North Carolina.

About the Author

Erwin Byrd

NCAJ Member & Amicus Consultant

Erwin Byrd

NCAJ Member & Amicus Consultant

Erwin Byrd started working with NCAJ in January 2020. Her legal career began with a seven-year stint at Legal Aid of North Carolina, where she was a staff attorney for its statewide project, Advocates for Children’s Services. There, she represented children in matters involving special education, access to a constitutionally adequate education, school discipline and Medicaid. Byrd taught school discipline law as an adjunct at North Carolina Central University School of Law and clerked from 2017-2019 for Justice Samuel J. Ervin IV at the Supreme Court of North Carolina.

She is an avid reader, loves writing and enjoys researching all areas of law (with the possible exception of taxation and trusts and estates law). At NCAJ, she is the contracted amicus consultant, who writes and assists in the drafting and filing of amicus briefs in North Carolina state and federal appellate courts. This year, she is the president of her children’s elementary school PTA, and has found that’s about all the extracurricular work she can sustain. Byrd is a graduate of the University of the South in Sewanee in Tennessee and the University of North Carolina School of Law. She, her husband and their two children live in Durham and can often be found at a soccer field or in a lake or river.