An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-942
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014


ANTOINETTE MORGAN,
     Employee, Plaintiff,

      v.                                      North Carolina Industrial
                                              Commission
                                              I.C. No. 899078
INTERIM HEALTHCARE,
     Employer, SELF-INSURED
     (GALLAGHER BASSETT SERVICES,
     INC., Servicing Agent),
     Defendant.


      Appeal by plaintiff from opinion and award entered 10 April

2013 by the North Carolina Industrial Commission.                    Heard in the

Court of Appeals 8 January 2014.


      Hyler & Lopez, P.A., by Robert J. Lopez, for plaintiff-
      appellant.

      Brooks, Stevens & Pope,            P.A.,    by   Ginny    P.   Lanier,    for
      defendant-appellee.


      BRYANT, Judge.


      Where there was sufficient evidence that plaintiff reached

maximum medical improvement in January 2009, and that plaintiff

was offered but unjustifiably refused suitable employment, we

affirm the opinion and award of the Full Commission finding and
                                           -2-
concluding that plaintiff is not entitled to ongoing disability

benefits.

     Plaintiff-employee Antoinette Morgan worked as a Certified

Nursing    Assistant     with    Defendant         employer     Interim    Healthcare

Services where she assisted patients in their homes.                               On 10

January 2008 and again on 18 January 2008 while assisting a

patient,    plaintiff     injured       her      back   and     hip.     The     injury,

diagnosed as a paralumbar strain, was reported to defendant and

plaintiff’s claim was accepted pursuant to defendant’s Form 60

as   a     compensable        injury.            Plaintiff’s       average        weekly

compensation rate was determined to be $232.78.                          On 29 April

2010, plaintiff filed a request that the claim be assigned for

hearing due to a disagreement about plaintiff’s entitlement to

indemnity and medical benefits.               On 6 September 2011, the matter

was heard before Deputy Commissioner Kim Ledford.                         In an order

entered    18   October       2012,   Deputy       Commissioner        Ledford    denied

plaintiff’s     claim    for    further       medical      compensation,       awarding

compensation at a rate of $232.78 per week for six weeks only.

Plaintiff appealed the deputy commissioner’s order and award to

the Full Commission.

     The    matter      was    reviewed       by    the    Full    Commission       (the

Commission)     which    entered      an   opinion        and   award    finding    that
                                                  -3-
between    10     January           2008    and    April      2010,     plaintiff      saw   ten

physicians in regard to symptoms stemming from her compensable

injury.          On     30     April       2008,     less     than     four     months     after

plaintiff’s compensable injury, she was examined by Dr. James

Hoski, an orthopaedic surgeon with Spine Carolina.                                   “Dr. Hoski

found no objective findings to support Plaintiff’s complaints of

pain.”     While Dr. Hoski referred plaintiff to a pain management

physician, he recommended that plaintiff continue working four

hours per day with no patient transfers, bending, squatting, or

lifting    more       than     five        pounds.       In     October      2008,    plaintiff

sought a second opinion from orthopaedic specialist Dr. Stephen

David.      In        November       2008,     Dr.      David     assessed      plaintiff    at

maximum medical improvement for                         the injury to her back from

which     the    workers’           compensation         claim    stemmed.           Dr.   David

assigned        permanent       work        restrictions         of    eight    hour     shifts,

alternating between sitting and standing with limited bending,

stooping, and twisting, and no lifting, pushing or pulling more

than 10 pounds.              On 5 January 2009, Dr. David assigned plaintiff

a   two   percent        permanent          impairment        rating    to     her   spine   and

discharged        her        from     his    care.          After      plaintiff       received

permanent work restrictions, defendant twice offered her a full-

time clerical support position.                      Plaintiff accepted the position
                                              -4-
the second time it was offered but did not show up for work.

The day after she was to report to work, plaintiff went to the

Asheville     Family          Health        Center.         She    requested        a    note

restricting       her    from    work       for     the   previous       day.      Defendant

stated     that    regardless          of     the      out-of-work       note,     plaintiff

violated a zero tolerance policy by failing to notify defendant

she could not come to work, and plaintiff was terminated from

defendant’s employment.              In April 2010, plaintiff was receiving

care from her primary care physician, Dr. Coin, and continued to

complain of left-side body symptoms.                       Dr. Coin “considered the

possibility       that        many     of     Plaintiff’s         body     symptoms      were

manifestations of her emotions . . . .”

    The     Commission          concluded         that     a   preponderance        of    the

evidence     established         plaintiff          had    reached       maximum     medical

improvement with respect to her compensable injury by 5 January

2009.    “Defendant has provided all medical treatment reasonably

required to effect a cure or give relief, and Plaintiff is not

entitled     to    further       medical          treatment       under     this    claim.”

“Plaintiff unjustifiably refused suitable employment offered to

her by Defendant in December 2008 and again in January 2009.

Plaintiff     is        not     entitled          to      compensation          during    the

continuation of her refusal.”                  The Commission denied plaintiff’s
                                                -5-
claim    for      further      medical      compensation            and     temporary    total

disability,       and       affirmed      the    deputy       commissioner’s         award    of

$232.78     per    week       for   six    weeks       for    plaintiff’s       two     percent

impairment to her back.             Plaintiff appeals.

                            __________________________________

      On    appeal,         plaintiff     raises       the     following       four     issues:

whether     the    Commission        erred      by     finding       and    concluding       that

plaintiff       (I)     was    at   maximum       medical          improvement;      (II)     was

offered suitable employment; (III) refused suitable employment;

and     (IV)     was     not    entitled         to    further        ongoing       disability

benefits.

                                       Standard of review

                     This Court's review is limited to a
                determination    of     (1)   whether    the
                Commission's findings of fact are supported
                by competent evidence, and (2) whether the
                Commissioner's   conclusions  of   law   are
                supported by the findings of fact. The
                Commission's findings of fact are conclusive
                on   appeal   if   supported  by   competent
                evidence, even where there is evidence to
                support contrary findings. The Commission's
                conclusions of law, however, are reviewable
                de novo by this Court. The Commission is the
                sole judge of the credibility of the
                witnesses and the weight accorded to their
                testimony.

Meares     v.    Dana    Corp./Wix        Div.,       172    N.C.    App.    291,     292,    615

S.E.2d     912,       915     (2005)      (citation          and    quotations       omitted).
                                     -6-
“Unchallenged findings of fact are presumed to be supported by

competent    evidence   and   are    binding      on    appeal.”      Allred   v.

Exceptional Landscapes, Inc., ___ N.C. App. ___, ___, 743 S.E.2d

48, 51 (2013) (citation omitted).              However, during our review of

challenged findings of fact, we do not reweigh the evidence.

See Bishop v. Ingles Markets, Inc., ___ N.C. App. ___, ___, ___

S.E.2d ___, ___ (filed April 15, 2014) (No.COA13-1102) (citation

omitted).

                                           I

    Plaintiff first argues the Commission erred by finding that

she reached maximum medical improvement (MMI) by January 2009.

Plaintiff contends that while her treating physicians did not

recommend surgical procedures to address her injury, she had

been referred to pain management specialists for evaluation and

treatment.    And, because there were still courses of treatment

available    to   decrease    or    help       manage   her   pain,   plaintiff

contends she was not yet at MMI.           We disagree.

            MMI as a purely medical determination occurs
            when the employee's physical recovery has
            reached its peak, so that the extent to
            which an employee has reached MMI is not
            necessarily a crucial fact upon which the
            question    of    plaintiff's    right    to
            compensation depends.

            The decisions of the Supreme Court and this
            Court, which have consistently used the same
                                       -7-
              standard   to    address   disability-related
              claims regardless of whether those claims
              arose before or after MMI, make no mention
              of utilizing different standards for making
              such determinations depending upon whether
              the claimant is still in the healing period.

Wynn v. United Health Servs./Two Rivers Health-Trent Campus, 214

N.C. App. 69, 78, 716 S.E.2d 373, 381—82 (2011) (citing Walker

v. Lake Rim Lawn & Garden, 155 N.C. App. 709, 717—18, 575 S.E.2d

764, 769 (utilizing N.C. Gen. Stat. § 97–32 to evaluate the

defendant's assertion that the plaintiff had refused suitable

employment despite the fact that the plaintiff had not reached

MMI), and Bailey v. Western Staff Servs., 151 N.C. App. 356,

363—64, 566 S.E.2d 509, 514 (2002) (evaluating the suitability

of a job offered to the claimant prior to MMI utilizing the same

standard      applied   in    other   cases))    (citations   and    quotations

omitted).

       In its findings of fact, the Commission acknowledged the

medical assessments made by Drs. Hansen, Hoski, and David but

gave    the    greatest      weight   to   the   testimony    of    Dr.   David.

Plaintiff challenged the Commission’s finding of fact premised

on Dr. David’s testimony that “Plaintiff reached maximum medical

improvement [(MMI)] by January 5, 2009 and retains a two percent

permanent impairment to her back as a result of the January 2008

injuries.”      Though not specifically challenged, the Commission,
                                    -8-
taking into account the testimony of the doctors, further found

that plaintiff’s physical complaints had a non-organic basis:

“[i]t appears that Plaintiff may suffer from a psychological

problem such as a somatization disorder.           However, this has not

been   shown   to   have   been   caused   by   Plaintiff’s   work-related

accidents.”

       Other findings of fact show that in October 2008, plaintiff

was seen by Dr. David, an orthopaedic specialist, working with

the Blue Ridge Bone & Joint Clinic.

           22. . . . Dr. David reviewed Plaintiff’s x-
           rays and MRI results and saw no evidence of
           scoliosis,          spondylolysis         or
           spondylolisthesis, as well as no indications
           of    neurologic    impingement   or    disc
           herniation. The MRI showed only mild pre-
           existing facet arthropathy at L4-5 and L5-
           S1. The examination showed no neurological
           deficits, only mild tenderness over the
           paraspinal   musculature,    and  subjective
           decreased sensation of the left thigh and
           left leg, which could not be objectively
           verified. The examination was also positive
           for Waddell’s Signs. Dr. David was of the
           opinion that Plaintiff might have some
           irritation around the piriformis, and he
           referred her for a piriformis block . . .
           because it did not appear that Plaintiff’s
           pain was from her back.

           23. On    October   30,    2008,   Plaintiff
           underwent a sciatic nerve distribution block
           to the piriformis muscle . . . . Plaintiff
           returned to Dr. David and advised that the
           piriformis injection did not help her pain.
           . . . As of this visit, Dr. David assessed
                                        -9-
            plaintiff at maximum medical improvement
            from her workers’ compensation claim as to
            her back, and he recommended that Plaintiff
            undergo a functional capacity evalutation
            (FCE). . . .

            . . .

            25. . . . [Dr. David] reviewed the FCE and
            noted that there were variable levels of
            physical effort on Plaintiff’s part, such
            that the FCE was neither reliable nor
            helpful      in      delineating      Plaintiff’s
            functional status. Dr. David set permanent
            work   restrictions      of   limited    bending,
            stooping and twisting, no lifting, pushing
            or   pulling    more    than   10  pounds,    and
            alternate sitting and standing. . . .

            . . .

            30. . . . Dr. David noted that the FCE
            would allow Plaintiff to work an 8 hour day.

Dr.   David’s    deposition        testimony   supports      the     Commission’s

finding of fact which plaintiff challenges.

      Based on these findings of fact, the Commission concluded

that “[a] preponderance of the evidence in view of the entire

record    establishes      that    by   January     5,   2009,     Plaintiff   had

reached    maximum       medical    improvement      with    respect     to    her

compensable     injury    by   accident.”      As    Dr.    David’s    deposition

testimony supports the Commission’s findings of fact and those

findings support its conclusion that plaintiff reached MMI as to
                                         -10-
the    compensable       injury    to    her    back    by     5    January      2009,    we

overrule plaintiff’s argument.

                                          II & III

       Plaintiff next argues the Commission erred in finding that

defendant     offered       plaintiff     “suitable           employment”       and     that

plaintiff’s       refusal    was   unjustified.              Plaintiff     contends      the

evidence does not support a finding that the job duties were

within the scope of her physical restrictions and as to her

termination from employment, that defendant failed to establish

that   her    termination      was      unrelated       to    her    disability.          We

disagree.

       “If an injured employee refuses suitable employment . . .,

the employee shall not be entitled to any compensation at any

time   during     the    continuance      of     such    refusal,         unless   in    the

opinion      of    the      Industrial         Commission          such    refusal       was

justified.”         N.C.    Gen.     Stat.      §   97-32      (2013).          “‘Suitable

employment’ is defined as any job that a claimant is capable of

performing considering his age, education, physical limitations,

vocational        skills    and      experience.”              Munns       v.   Precision

Franchising, Inc., 196 N.C. App. 315, 317, 674 S.E.2d 430, 433

(2009) (citation omitted); see also N.C. Gen. Stat. § 97-2(22)

(2013) (defining suitable employment).
                                    -11-
              A “suitable” position must both accurately
              reflect the claimant's ability to earn wages
              in the open market and not constitute “make-
              work:”

                  . . . “The Workers’ Compensation Act
                  does not permit [the] defendants 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] defendants
                  could terminate at will or for reasons
                  beyond their control.”

Wynn,   214    N.C.   App.   at   75,   716   S.E.2d   at   380   (citations

omitted).      “If other employers would not hire the employee with

the employee's limitations . . . or if the proffered employment

is so modified because of the employee's limitations that it is

not ordinarily available in the competitive job market, the job

is ‘make work’ and is not competitive.”           Precision Franchising,

196 N.C. App. at 319, 674 S.E.2d at 434 (citation and quotations

omitted).      The burden is on the employer to show that the job

offered meets the definition of suitable employment.              See id. at

318, 674 S.E.2d at 433.

     Here, the Commission made the following challenged finding

of fact:

              When Plaintiff was released by Dr. David to
              return to light duty work in December 2008,
              Ms. King and other personnel with Defendant
              identified a job position that would include
              light   duty   work  in   the   office   and
                                       -12-
               accommodate   her   work   restrictions.     The
               position   offered   to   Plaintiff   was    the
               Clerical   Support   position,   which    is   a
               position for which Defendant regularly hired
               and   which   Plaintiff    could    have    held
               indefinitely. The position was not simply
               made    up    to   accommodate      Plaintiff’s
               restrictions.

We look to the evidence of record for support.               But, initially,

we note the Commission’s finding of fact regarding plaintiff’s

physician-imposed       work restrictions:       “Dr. David set permanent

work restrictions of limited bending, stooping and twisting, no

lifting, pushing or pulling more than 10 pounds, and alternate

sitting and standing.”         “[Dr. David] had no medical indication

that Plaintiff could not perform work within the restrictions

given to her, as they were consistent with activities of daily

living.        Dr. David stated that the restrictions he assigned

plaintiff represent the minimum she was able to perform.”

       Chief     Executive   Officer    of    Interim   Healthcare,   Delores

King,     testified     that    following      plaintiff’s    January   2008

compensable injury, “[p]laintiff worked in a light duty capacity

in the office filing, answering telephones, and performing other

clerical duties as needed.”            Plaintiff worked for four hours a

day.    King testified as follows with regard to the offer for a

full-time clerical support position:

               A.   This is a job offer by Shelly Schaffer,
                    -13-
     who was the director of professional
     services, offering a full time – a
     full-time job, forty hours a week, that
     –    within    the   limits   of    her
     restrictions. . . .

. . .

Q.   Now, the job that’s being offered, is
     this   a  position that  the   company
     regularly has available for hire, to
     hire people in?

A.   Yes, it is.

Q.   So it was not a position that was just
     made up for [plaintiff]?

A.   Was this position – this is a position
     that we normally would have had in the
     office, yes.

. . .

Q.   And the position itself, then was there
     an opening for the position that you
     were offering, the full-time position
     that you were offering [plaintiff]?

A.   What I did at the time was I had two
     part-time people who worked . . . .

     . . . We have peak times when things
     are busy. So what we did do at that
     time is extended the hours of the
     weekend people, and extended [a part-
     time person’s hours]. But we still had
     a gap where we needed somebody to fill
     in for those, because we had some
     overtime involved. So we – [plaintiff]
     filled that role.
                                    -14-
       The evidence of record supports the Commission’s finding

that   the   job   requirements    of    the    position     offered   plaintiff

included     light   duty   work    in         an   office    consistent     with

plaintiff’s    physician-imposed        work    restrictions    and    it   was   a

position for which defendant regularly hired.                  Defendant’s job

offer was not “make work.”          Therefore, we overrule plaintiff’s

argument that the employment offered was “make work” and not

suitable employment.

                     Refusal of suitable employment

       Plaintiff further contends defendant failed to establish as

grounds for termination that her conduct amounted to misconduct

or fault.

                  [W]here an employee, who has sustained
             a compensable injury and has been provided
             light duty or rehabilitative employment, is
             terminated    from   such    employment    for
             misconduct or other fault on the part of the
             employee, . . . the test is whether the
             employee's loss of, or diminution in, wages
             is   attributable   to   the   wrongful    act
             resulting in loss of employment, in which
             case benefits will be barred, or whether
             such loss or diminution 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.

Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755,

762, 656 S.E.2d 676, 681 (2008) (citation omitted).
                                       -15-
      On 23 December 2008, plaintiff met with Shelly Schaffer,

RN,     the    Director    of      Professional       Services     for   Interim

Healthcare.       Schaffer presented plaintiff with a formal offer

for a full-time Clerical Support position.               Plaintiff was given

until    26   December    2008    to   accept   the    position    but   did   not

respond.      By letter dated 5 January 2009, Schaffer again offered

plaintiff     a   full-time      Clerical   Support    position,    instructing

plaintiff to respond to the offer by 15 January 2009.                      On 15

January 2009, plaintiff notified defendant that she accepted the

job offer but that she had a note from the Asheville Family

Health Centers excusing her from work through 16 January.

              38. Plaintiff was expected to begin work
              with Defendant as an office assistant on
              January 19, 2009. After Plaintiff failed to
              call out of work or show up, she was
              terminated     pursuant    to     Defendant's
              established company policy. Via a letter
              from Ms. King dated January 23, 2009,
              Defendant advised Plaintiff that Defendant
              expected Plaintiff to show up for work on
              January 19, 2009 and that her failure to do
              so or to maintain contact with Defendant
              resulted in forfeiture of her employment.

              39.   Ms.   King   testified  that   because
              Defendant is a healthcare business, it has a
              very strict attendance policy about which
              all employees are informed. Employees sign a
              policy acknowledging that termination is
              immediate in the event that they do not show
              up for work. . . . Ms. King explained that
              Defendant will be flexible in the event an
              employee is sick or has another legitimate
                                -16-
            problem, but if an employee simply does not
            show up for work or does not call, the
            employee is immediately terminated.

In her deposition, King testified “[t]o get fired, you had to be

dishonest, you had to be insubordinate, or you had to be no-

show.”

            43. On January 19, 2009, Plaintiff returned
            to   Asheville    Family   Health   Centers.
            Plaintiff was not evaluated, rather, she
            requested   an   out   of   work   note   to
            retroactively take her out of work on
            January 17, 2009. . . . On January 20, 2009,
            [an RAC nurse] wrote a second out of work
            note, without any accompanying evaluation of
            Plaintiff, taking Plaintiff out of work from
            January 17, 2009 through January 23, 2009. .
            . .

            . . .

            48. . . . Dr. Clemenzi[, with Asheville
            Family   Health  Centers,]   testified  that
            "unfortunately" she and the clinic staff
            give out of work notes to patients "pretty
            freely." Dr. Clemenzi further testified that
            she gives out work notes to people who she
            thinks could be working.

    We find that the record evidence supports the Commission’s

findings of fact, and we affirm the Commission’s conclusion that

plaintiff      unjustifiably    refused    suitable    employment.

Accordingly, we overrule plaintiff’s argument.

                                 IV
                                             -17-
     Lastly, plaintiff argues that even if the Commission were

to   find        that     plaintiff          unjustifiably      refused           suitable

employment,       plaintiff          is    nevertheless    entitled         to     ongoing

disability benefits.                Plaintiff contends that if work-related

injuries    prevented         her    from    performing   alternative        duties       or

finding     comparable         employment        opportunities,       she        would    be

entitled to benefits.           We disagree.

     “[T]he Seagraves rule aims to provide a means by which the

Industrial        Commission         can     determine    if    the       circumstances

surrounding a termination warrant preclusion or discontinuation

of injury-related benefits.”                    McRae v. Toastmaster, Inc., 358

N.C. 488, 495, 597 S.E.2d 695, 700 (2004) (referencing Seagraves

v. Austin Co. of Greensboro, 123 N.C. App. 228, 472 S.E.2d 397

(1996)).         “[U]nder      the       Seagraves'   test,    to    bar    payment       of

benefits, an employer must demonstrate initially that: (1) the

employee was terminated for misconduct; (2) the same misconduct

would     have     resulted         in    the    termination    of    a     nondisabled

employee;        and    (3)    the        termination    was   unrelated          to     the

employee's compensable injury.”                   Id. at 493, 597 S.E.2d at 699

(citing Seagraves, 123 N.C. App. at 234, 472 S.E.2d at 401).

     As discussed in issues II and III, plaintiff’s termination

was based on her failure to report to work without any prior
                                            -18-
notification to          defendant, conduct which             violated defendant’s

employment policy.           Chief Executive Officer King testified that

all employees are informed that Interim Healthcare has a strict

attendance policy and that employees sign a policy acknowledging

that termination of employment is immediate in the event the

employee fails to show-up for work absent notice.                        Plaintiff was

on   notice       that     her    failure     to    report    to    work    absent      any

notification to defendant would result in her termination.                            This

failure to notify defendant about plaintiff’s need to be absent

from work was not related to plaintiff’s compensable injury.

Though     not    dispositive       of   this      last   point,    we   note    that   in

plaintiff’s brief to this Court, she states, “[p]laintiff did

not notify her employer herself as she was not awake to call

them . . . .”              The record provides no indication that work-

related injuries prevented plaintiff from performing the tasks

required     by    the     position,     tasks      which    were   within      her   work

restrictions.        Thus, defendant has provided sufficient evidence

to    support        the     Commission’s           conclusion       that       plaintiff

unjustifiably refused suitable work.

      An    employer's           successful     demonstration       of     constructive

refusal to perform suitable work by an employee can serve as a

bar to benefits for lost earnings, “unless the employee is then
                                    -19-
able to show that his or her inability to find or hold other

employment ... at a wage comparable to that earned prior to the

injury is due to the work-related disability.”              Id. at 493—94,

597 S.E.2d at 699 (citation and quotations omitted).

     Plaintiff contends that she is entitled to ongoing benefits

because her work related injuries have prevented her from either

performing alternative duties or finding comparable employment

opportunities.     Plaintiff   contends    that     “even   if   [she   was]

capable of some work, seeking and finding employment within her

very limited sedentary / light duty work restrictions would be

futile and unrealistic . . . .”       We disagree.

     The Commission made the following unchallenged finding of

fact:

            Plaintiff was 47 years of age. She has a
            high school education and one and one-half
            years of college, as well as several
            continuing education clerical certificates
            from community college.      Her employment
            history includes . . . clerical accounts
            payable clerk work for a department store
            for several years, . . . clerical work for a
            janitorial     services     business     for
            approximately 10 years, . . . and a clerical
            work for a doctor’s office for approximately
            eight years.

Following plaintiff’s January 2008 injury, plaintiff “worked in

a   light   duty   capacity    in    the   office     filing,    answering

telephones, and performing other clerical duties . . . .”                The
                               -20-
Commission also found that “Plaintiff has not looked for work

since her termination by Defendant in January 2009.”      On these

findings, the Commission drew the following conclusion:

         [t]he greater weight of evidence fails to
         show that Plaintiff continues to be unable
         to earn wages in the same or any employment.
         Plaintiff has refused suitable employment
         and has otherwise made no effort to work
         under reasonable restrictions.    Therefore,
         she is not entitled to any compensation
         pursuant to N.C. Gen. Stat. ' 97-29 or N.C.
         Gen. Stat. ' 97-30.

(citations omitted).   Based on these unchallenged findings of

fact, we affirm the Commission’s conclusion that plaintiff was

unable to show her inability to find or hold employment at a

wage comparable to her pre-injury wage was due to her work-

related disability.    Therefore, plaintiff is not entitled to

ongoing disability benefits.   Accordingly, plaintiff’s argument

is overruled.

    Affirmed.

    Judges CALABRIA and GEER concur.

    Report per Rule 30(e).
