The third workers’ compensation decision that the North Carolina Court of Appeals issued last week was Reaves v. Industrial Pump Service, a case that had already been to the Court last year.  Under the Pickrell presumption, “When an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, courts should indulge a presumption or inference that the death arose out of the employment.”  The defendant must then show that the death occurred due to a non-compensable cause; otherwise the plaintiff prevails.  In addition, if an employee suffers a heart attack while conducting his work in the usual way, the injury is not compensable.  But, a heart attack can be a compensable accident if it “is due to unusual or extraordinary exertion . . . or extreme conditions.”  Here, plaintiff was working in extreme heat in repairing a basement pump.  Not feeling well, he went to his truck, where is partner found him dead from a heart attack not long afterward.  The Court concluded that the Industrial Commission correctly applied the presumption, that defendant had not rebutted it, and thus that plaintiff’s death was the result of a compensable accident, entitling his wife to workers’ compensation death benefits.

The last workers’ compensation case in this batch is a 2-1 split decision, Shay v. Rowan Salisbury Schools.  The plaintiff, a 15-year teacher, had always used the elevator to get to her second floor classroom.  The elevator broke, and for a month, she had to use the stairs to get to the classroom.  One day, while climbing the stairs, her knee “popped,” and she eventually had to have surgery for a meniscus tear.  Plaintiff did not stumble, fall, trip, slip, or twist her knee causing her injury.  The  Commission found this to be a compensable accident, over Commissioner Ballance’s dissent.  The Court reversed, finding the injury was not from an “accident.”  Continue for more on case: Read more…

Categories: Judicial Decisions Tags: Case Commentary, Compensable Injury, Death Benefits, Heart Attack, Heat Exposure, Industrial Commission, Injury by Accident, Knee Injury, NC Court of Appeals, Pickrell Presumption, Rowan Salisbury, Workers' Compensation

On July 20, 2010, the North Carolina Court of Appeals issued four published opinions regarding workers’ compensation.  The first decision, Morales-Rodriguez v. Carolina Quality Exteriors, Inc., concerned whether the plaintiff was an employee or an independent contractor of the defendant.  The plaintiff sought benefits for injuries sustained when he fell from a building at Nags Head, North Carolina, while applying stucco siding.  Workers’ compensation benefits can only be awarded to employees; independent contractors are not covered by the Workers’ Compensation Act.  In distinguishing between an employee and contractor, “The vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details.”  Factors to be considered are whether:

the person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.

Here, the Court credited the plaintiff’s testimony and documentary evidence that he was paid by the hour, was instructed on how to work, and did not hire his own assistants.  Thus he was found to be an employee and the Court upheld his award of benefits.

In the second case, Price v. Piggy Palace, the plaintiff, a 20-year-old cook, was injured when a co-worker slipped and fell, spilling approximately three gallons of hot grease onto the plaintiff.  As a result, the plaintiff suffered severe burns to his head, left arm, and legs.  The Full Commission had ordered that the plaintiff receive the recommended pulse dye laser treatment to aid his recovery, and awarded plaintiff travel expenses for his parents’ everyday travel to the hospital.  During his hospital stay, the plaintiff’s parents had gone to the hospital every day and his mother assisted in the treatment of his burns, particularly with washing and dressing them.  In affirming the award of travel expenses, the Court concluded that the plaintiff’s mother’s medical assistance and psychological support were reasonably necessary to provide relief for his condition, which is sufficient to award travel expenses as part of medical expenses under N.C. Gen. Stat. 97-25.

Categories: Judicial Decisions Tags: Case Commentary, Employee Requirement, Independent Contractors, Industrial Commission, Medical Expenses, NC Court of Appeals, Travel Expenses, Workers' Compensation

Senate Democrats, with the help of only two Republicans, were finally available to break the deadlock over the extension of unemployment benefits.  President Obama signed the bill this past Thursday.  This bill provides a continuation of the program of extended benefits for those who exhaust the standard 26 weeks of unemployment benefits.  Coverage is here, here.  Although this bill is only a small part of the jobs-boosting agenda Congress needs to have, it was still vital for millions of unemployed having great difficulty finding a job in this broken economy.  For an example, see here.  Although there appears to be too much opposition for additional action on jobs right now, one hopes both parties will come to their senses and realize that the federal government can and must do much more to create sustainable employment growth.

For those seeking benefits, see this note from the North Carolina Employment Security Commission: “On July 22, 2010, the extension of the Federal Emergency Unemployment Compensation (EUC08) program was signed into law. The new law extends the filing deadline, but it does not provide for additional EUC08 tiers. The ESC is working with the Department of Labor to implement this change as quickly as possible. If you are currently filing for benefits please continue to do so. If you are not currently filing for benefits our agency will notify you on how to reinstate your claim.”

Categories: Legislative Action Tags: Congress, Employment Security Commission, Extended Benefits, Job Creation, Labor and Employment, North Carolina, President Obama, Unemployment Benefits

On June 24, 2010, Josh Van Kampen prevailed in a case manager hearing on behalf of a probationary teacher who was wrongfully terminated by Charlotte Mecklenburg Schools (CMS).  Superintendent Peter Gorman initially recommended that the teacher be terminated for allegedly using excessive force in restraining a disruptive middle school student.  The teacher contended that the student aggressively came at her and that she merely acted in self defense.  After a three day hearing, the Case Manager ruled that the teacher acted appropriately and ordered her reinstated with back pay.   The CMS Employee Relations Department’s investigation into the incident was shown to flawed in several respects, including its failure to obtain a written statement from the alleged victim, its failure to take a photograph of the alleged injury and unexplained delays in interviewing several witnesses.   It was also shown at the hearing that the student had a lengthy history of disruptive behavior, including challenging another teacher to a fight, which the Employee Relations’ Department failed to consider.   There were also troubling inconsistencies in the accounts of the school administrators, who disagreed on when the alleged injury was detected and even where on the student’s head the injury was located.

Josh has served as counsel for the North Carolina Educators Association (NCAE) since the beginning of 2010.

Categories: Judicial Decisions, Results Tags: Case Manager Hearing, Charlotte Mecklenburg Schools, Joshua Van Kampen, Labor and Employment, North Carolina Educators Association, Probationary Dismissal, Results, Teachers

On behalf of two local IAM unions, Patterson Harkavy has prevailed in federal district court in a case challenging a labor arbitration decision.  This case arises from Plaintiff UGL UNICCO’s termination of union member Ronald Corbett.  UGL UNICCO provides facilities maintenance services at a tire plant in Wilson, North Carolina, owned by Bridgestone Firestone North American Tire.  Corbett was employed by UGL UNICCO and worked at the Bridgestone Plant.  Defendants Local 2541 and District 110 are constituent entities of the International Association of Machinists and Aerospace Workers (“IAM”).  The IAM was represented in this case by Mike Okun and Narendra Ghosh.

The union challenged Corbett’s termination and the case was initially decided by an experienced labor arbitrator.  Corbett, a 34-year employee, did nothing wrong in getting fired, but was terminated without just cause because of Bridgestone’s unilateral decision.  This is commonly known as a persona non grata situation.  The arbitrator found that this firing violated the union’s contract with UNICCO, and award Corbett 68 weeks of pay as damages because she could not order Bridgestone to return him to work.  UNICCO challenged the arbitrator’s decision in federal court.

In his July 16, 2010 opinion, Judge Boyle affirmed the arbitrator’s award and granted the union’s motion to enforce it.  Judge Boyle reasoned:  Read more…

Categories: Judicial Decisions, Results Tags: Bridgestone, Eastern District of North Carolina, Federal Court, International Association of Machinists, Labor and Employment, Labor Arbitration, Michael Okun, Narendra Ghosh, Personan Non Grata, Results, UNICCO, Unions, Wilson

Last year, the State expanded the coverage of the North Carolina Guaranty Association to include structured settlement annuitities for North Carolina residents.   This is especially important for people who receive annuities as part of a workers’ compensation or personal injury settlement.  Coverage here.  One part of the new law’s language was less than clear, which required an amendment.  The amendment makes clear that annuity protection runs to the benefit of the actual beneficiary, the “payee” of the policy.  The text can be found here.  The amendment was enacted during the legislature’s short session this summer and signed by the governor.  Hank Patterson and Narendra Ghosh assisted with the legislative effort.

Categories: Legislative Action Tags: Hank Patterson, Legislation, Narendra Ghosh, NC Legislature, North Carolina, Personal Injuries, Structured Settlements, Workers' Compensation

The North Carolina Court of Appeals has issued two workers’ compensation cases of note in its latest batch of decisions.  The first, Woodliff v. Fitzpatrick, concerned whether the plaintiff’s employer had three or more employees.  An employer is subject to the Workers’ Compensation Act only if it “regularly employs” three or more employees.  See N.C. Gen. Stat. § 97-2(1).  “The term ‘regularly employed’ connotes employment of the same number of persons throughout the period with some constancy.”  The plaintiff was a framing carpenter who worked for a general contractor.  The Court found that the plaintiff could not sufficiently prove that two other people worked with him on a regular basis, and also could not show that the other people who worked with him were employees rather than independent contractors.  Nor is there any presumption of jurisdiction even though the plaintiff proved that at least he was an employee rather than contractor.  Because the plaintiff could not meet his burden of proving that there were three or more employees, the Court concluded that Industrial Commission did not have jurisdiction over the claim.

The second case, Shupe v. City of Charlotte, concerned a police officer who injured her knee during her employment.  Her knee did not recover, and it was eventually determined that she arthroscopic surgery.  Charlotte opposed the surgery, which required the plaintiff to get an order from the Industrial Commission ordering the surgery.  Unfortunately, by the time this order was obtained, plaintiff was diagnosed with pancreatic cancer.  Her oncologist concluded that she could not have knee surgery because it would interfere with her cancer treatment.  Without the knee surgery, plaintiff could not return to work.  The Court affirmed the Industrial Commission’s award of temporary total disability benefits to plaintiff because her inability to work was caused by a combination of the compensable right knee injury, her subsequent inability to obtain corrective surgery because of her cancer, and the effects of her cancer treatments.  “Our courts have held that where a claimant is rendered totally unable to earn wages, partially as a result of a compensable injury and partially as a result of a non-work-related medical condition, the claimant is entitled to an award for total disability under G.S. § 97-29.”  The Court also would not let Charlotte escape liability by creating a temporary light-duty position for the plaintiff.  Because this position was a make-work temporary position, and not ordinarily available, it does not constitute suitable employment for the plaintiff to return to.

Categories: Uncategorized Tags: Case Commentary, Charlotte, Combination of Injuries, Construction Companies, Employee Requirement, Independent Contractors, Industrial Commission, NC Court of Appeals, Police Officers, Workers' Compensation

The Fourth Circuit has issued another good decision in favor of employees who are sexually harassed in EEOC v. Fairbrook Medical Clinic. This case involves a family medicine practice in Hickory, North Carolina.  Here’s the summary: “The Equal Employment Opportunity Commission brought this suit on behalf of Dr. Deborah Waechter against her former employer, Fairbrook Medical Clinic. The agency alleges that Dr. John Kessel, the sole owner of the clinic, subjected Waechter to a hostile work environment because of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court held that Kessel’s conduct was not sufficiently severe or pervasive to constitute a hostile work environment. What happened here, however, was not merely general crudity but a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment. After carefully considering these circumstances, we conclude that the EEOC has presented an issue of triable fact and accordingly reverse.” Here’s more from the opinion: Read more…

Categories: Judicial Decisions Tags: Case Commentary, Discrimination, EEOC, Fourth Circuit, Hostile Work Environment, Labor and Employment, North Carolina, Severe and Pervasive Conduct, Sexual Harassment

The federal Department of Labor issued some important guidance regarding the coverage of the Family and Medical Leave Act (FMLA) as it applies to all sorts of unconventional families. The DOL made clear that FMLA rights to get time off to care for children do not require a biological relationship with the child. Rather, anyone who has assumed the role of parent (for example a non-married step-parent, grandparent, or same-sex partner) is entitled to FMLA leave to care for the child.  Continue for highlights from the guidance: Read more…

Categories: Legislative Action Tags: DOL, Family and Medical Leave Act, FMLA, Labor and Employment, Parental Leave, Work and Family Balance

Last week, the U.S. Supreme Court issued two decisions concerning whether particular issues had to be decided by an arbitrator or in federal court.  One care arose in the traditional area of labor arbitration between companies and unions; the second arose in the ever-growing area of employer-imposed arbitration agreements on regular employees.

In the first, Granite Rock v. International Brotherhood of Teamsters, the Court ruled for the company, as ScotusBlog describes:

The parties had reached a collective bargaining agreement (CBA), but they disagreed about both when the CBA was formed and who should decide that question.  Today the Court, in an opinion by Justice Thomas, held that a court, rather than an arbitrator, should decide when the CBA was formed.  The Court explained that under the CBA, arbitration is required only when a dispute “arise[s] under” the agreement – which a dispute over when the CBA was formed does not.  The Court also held that the lower court properly declined to recognize a new federal common-law cause of action against the parent international union, which – according to the employer – tortiously interfered with the CBA.

In the second, Rent-a-Center v. Jackson, the Court sided with the employer, and held that the issue of unconscionability (a challenge to whether the arbitration agreement is valid in the first place), was to be decided by the arbitrator, as Workplace Prof Blog describes:

The Court held the issue was governed by the separability doctrine of Prima Paint: an arbitration agreement is assailable only if the arbitration agreement itself — not the overall agreement of which the arbitration is a part — is assailable on state-contract law grounds.  So far, so good for Jackson — until today, this separability doctrine has been applied only when an arbitration agreement was part of a broader (“container”) agreement that was not related to arbitration — e.g., an arbitration provision in a consulting-services contract or in a larger employment contract.  Jackson’s unconscionability argument was directed squarely at his arbitration agreement.

Today, however, the Court extended Prima Paint to hold that the arbitration agreement itself can be the container contract, and that unconscionability arguments must be directed toward specific provisions of the arbitration agreement.  Jackson’s unconscionability arguments, the Court held, were directed at the arbitration agreement generally, and therefore could not be grounds for voiding the arbitration agreement as a whole.

Read the whole post for its insightful analysis of how the Court erred, once again stretching the law to give a victory to employers over employees.

Categories: Judicial Decisions Tags: Arbitration Agreement, Case Commentary, CBA, Labor and Employment, Labor Arbitration, Teamsters, Unions, US Supreme Court