The first, Mehaffey v. Burger King involved a manager at Burger King who suffered a compensable knee injury while at work.  In the North Carolina Industrial Commission’s Opinion and Award, the Plaintiff was awarded retroactive attendant care fees for his wife, home modifications for a power wheel chair, a hospital bed, and transportation to doctors appointments.   Defendants argued that the Commission erred in awarding retroactive payments for attendant care because they were not pre-approved.  Shockingly, the Court agreed, even though the it recently held in the Boylan and Ruiz cases that pre-approval was not necessary for attendant care services.  The Court relied on the out-dated Hatchett case from 1954, which has been superceded by later Supreme Court decisions and legislative changes.  Perhaps the Court will agree to rehear the case, which appears to be a clear mistake.

Next, in Keeton v. Circle K, the Court affirmed the Industrial Commission’s Opinion and Award, which granted the defendants’ application to suspend benefits.  Keeton appealed the Commission’s decision, contending that she should be entitled to continuing benefits because she made a reasonable effort to return to work and there was no actual refusal to work.  The Court rejected these contentions, concluding there was sufficient evidence to show that the available manager position with Circle K fit within her physical restrictions, was “suitable employment,” and the Plaintiff made no effort to return to work at Circle K.  Thus, deeming the Plaintiff’s actions to be a voluntary refusal to accept suitable employment, the Court affirmed the denial of benefits under N.C. Gen. Stat. 97-32.

The Supreme Court has granted review on these issues:

“(1) Whether deference is owed to the Secretary of Labor’s interpretation of the Fair Labor Standards Act’s outside sales exemption and related regulations; and (2) whether the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives.”

The petition for certiorari may be viewed here.

The Court agreed with the Commission with respect to Plaintiff’s lung cancer, lymph node cancer, and pleural plaquing.  However the Court reversed “the Commission’s determination that Argonaut was the responsible carrier as to plaintiff’s claim for asbestosis” and remanded to the Commission to determine which carrier was holding the risk during the time Plaintiff was last exposed to asbestos for “30 working days, or parts thereof, within seven consecutive calendar months” and thus responsible for Plaintiff’s asbestosis with respect to N.C. Gen. Stat. § 97-57.  The Court also sent back to the Commission for further findings of fact the issues of the apportionment of the award for Plaintiff’s lung damage, the carrier responsible for Plaintiff’s laryngeal cancer, and the determination of Plaintiff’s average weekly wage.  This case is difficult because when determining which carrier was covering the risk for the Plaintiff’s occupational disease, the Commission must rely on work records and expense reports from years ago that were not always accurate while still meeting the requirements of  N.C. Gen. Stat. § 97-57.

The first, Salomon v. The Oaks of Carolina, involved a Certified Nurse’s Assistant (CNA) whose shoulder was injured when she was changing a partially paralyzed patient by herself with one arm and holding him up with the other.  The resident pushed back suddenly and the plaintiff heard a crack and had pain in her shoulder.  The defendants argued that the injury was not caused by accident because on the weekends the facility is often short staffed so it not uncommon for only one CNA to lift or move a resident.  The Court rejected defendants’ argument, holding that the unexpected event in this case was the sudden push back by the resident who does not typically resist assistance.  The injury therefore is by accident, and thus compensable. Regarding disability, the Court remanded the case to the Industrial Commission to make more detailed findings of fact.

The Second case, Thompson v. FedEx Ground/RPS, Inc., involved a woman who injured her back in 2000 when lifting luggage out of her rental car on a business trip.  Plaintiff appealed the Opinion and Award by the Industrial Commission, contending that the Commission failed to hold that there is a presumption of disability because of a prior award of disability from the Commission.  The Court, however, held that because the prior award only addressed the back injury and not the plaintiff’s alleged mysofascial pain syndrome and fibromyalgia, there was no presumption of disability and thus benefits would not be paid for the plaintiff’s other ailments.  The Court also upheld the Commission’s finding that the plaintiff’s alleged mysofascial pain syndrome and fibromyalgia were not related to her back injury.

The Court agreed with the NLRB in their assertion that the company had violated the National Labor Relations Act because the employee had talked to other employees about the policy and gathered evidence in support of her attempt to change the enforcement of the policy.  Thus the employee was participating in protected concerted activity in an attempt to achieve equal enforcement of the policy.  Equal enforcement of this policy would benefit all employees and the employee actively pursued coworkers support and help in changing the policy.  The Court thus reached the common-sense conclusion that the employee’s actions did meet the standard in the NLRA for protected concerted activity.

 Introduction:  The 2010 Term of the Supreme Court of the United States put a spotlight on the significant – though oddly unheralded – role that employment law plays in our country’s economy and in our citizens’ daily lives. One of the nation’s keenest (and self-described “obsessive”) Court observers recently characterized this term as “straight-up dull.” Emily Bazelon, “Chamber of Pain,” The New York Times Magazine, p. 9 (August 7, 2011.) My own judgment, however, is that what the Justices did in the employment area was consequential, if not downright exciting.  Through a number of employment-related cases, a cohesive and assertive majority of the Court fashioned the law to fit its socio-economic (if not overtly political) view that the employment relationship ought to be deregulated.  In doing so, the Court continued to pursue what the Reagan revolution began and the Tea Party followers hope to complete.  But more about that later.  For Court observers of all political stripes, the 2010 Term’s smorgasbord of decisions provides a feast to be savored and debated for months to come.

The North Carolina Court of Appeals, in another recent workers’ compensation case, Campos-Brizvela v. Rocha Masonry LLC, affirmed the Industrial Commission’s decision granting medical and disability benefits to a man whose hand were nearly amputated while cleaning a concrete pump.  Defendants appealed, arguing that because the plaintiff was hired by an employee of Rocha Masonry “who lacked the authority to make such a decision,” he was not employed for purposes of worker’s compensation at the time of his injury.  The Court found that a foreman for the defendant hired the plaintiff to work at a job site, drove the plaintiff to the job, told him that he would be earning $9.00 an hour paid by means of a check drawn on the account the employer, and directed the activities of the plaintiff and of others while at the job site.  Based on these facts, the Court correctly stated that because “Plaintiff reasonably believed he had been hired by someone with the authority to do so” he was considered an employee for purposes of workers’ compensation.  This is consistent with the basic agency principle of apparent authority.  Thus, the definition of an “employee” in N.C. Gen. Stat. § 97-2(2) does not require employees to determine whether or not the person who hired them was “acting within the scope of [their] actual authority.”  The Court also upheld the finding that the plaintiff was disabled.