In Campbell v. National Pipe and Plastics Inc. the Plaintiff, Sherron Campbell, was represented in part by Narendra Ghosh of Patterson Harkavy.  The North Carolina Court of Appeals ruled for the plaintiff in affirming the North Carolina Industrial Commission’s Opinion and Award, which had awarded workers’ compensation benefits to Ms. Campbell.

Ms. Campbell suffered injuries to her right hand and fingers when attempting to stop her fall by grabbing a nearby pipe.  This injury and resulting disability also aggravated Ms. Campbell’s depression, which had been manageable up to this point.  In the appeal, the defendants contended that the Commission erred in assigning weight to Dr. Williams’ testimony, arguing that they considered it to be speculative because he did not identify a specific degree to which Ms. Campbell’s compensable injury by accident had exacerbated her preexisting condition.   However, the Court held that Dr. Williams did not need to determine to what degree the workplace injury exacerbated the psychological condition, but only that it was a factor in the exacerbation of Ms. Cambell’s preexisting condition.  The defendants also contended that the Commission did not determine if plaintiff’s statements to her doctor were credible, but the Court ruled that a doctor is entitled to rely on information provided by the patient to form his opinion.  And, in any event, the Court of Appeals does not have authority to reweigh evidence or credibility determinations after the Commission has considered it.  Defendants’ final argument that the Commission erred in giving weight to Dr. Prakken’s opinion was overruled by the Court, which concluded that the Commission does not need to explain why it has given weight to particular evidence.

Categories: Judicial Decisions, News of the Firm Tags: Appeals, Case Commentary, Industrial Commission, Injury by Accident, Narendra Ghosh, NC Court of Appeals, Pre-existing condition, Results, Workers' Compensation

On Friday, Hank Patterson spoke at the 16th Annual Workers’ Comp Roundtable, a CLE put on by the North Carolina Advocates for Justice.  Hank was part of a panel addressing the proper language for Social Security offset language.

Categories: News of the Firm Tags: Hank Patterson, Health Insurance, NCAJ, Presentation, Social Security, State Health Plan, Workers' Compensation

In the case of Pascoe v. Furniture Brands International, Judge Frank Whitney in the Western District of North Carolina denied the defendants’ motion for summary judgment on plaintiff’s claims of sexual harassment today.  The case will now proceed to trial, which is scheduled for later this month.  Ann Groninger and Joshua Van Kampen represent the plaintiffs, Pam Pascoe and Margaret Tambling, against their former employers in this case.

Judge Whitney did not issue a written decision, but plaintiff’s memorandum in opposition to summary judgment well describes this case:

This case raises a very poignant and present question, which is the extent of an employer’s liability under state and federal law for the conduct of a seemingly mentally unstable supervisor who tormented his female employees with threats of violence, including gun violence, surveillance of their homes, and numerous bizarre sexual comments. Regrettably, the conduct at issue in this case is a cautionary tale of an employer that flubbed the handling of a potentially dangerous situation by initially ignoring glaring warning signs, subsequently severely under-reacting to them, and which ultimately chose to circle the wagons around the proverbial outlaw, rather than act as a responsible member of our corporate community. Thankfully, Spicer did not turn his guns on these women as he said he might, but plaintiffs feared that he was fully capable of physically harming them. They have carried emotional scars left by Mr. Spicer’s conduct; injuries made worse by their employer’s betrayal of them. Defendants may aim to use their summary judgment motions to establish a low water mark of the protections afforded women in the workplace in North Carolina; however, plaintiffs respectfully submit that they have marshaled sufficient facts to permit a jury to answer that question.

Categories: Judicial Decisions, News of the Firm Tags: Ann Groninger, Briefs, Discrimination, Joshua Van Kampen, Judge Whitney, Labor and Employment, Results, Sexual Harassment, Summary Judgment, Title VII, Western District of North Carolina

The North Carolina Supreme Court has sent a tricky workers’ compensation case back the Industrial Commission for additional fact-finding.  Cardwell v. Jenkins Cleaner involves a plaintiff who was injured when she slipped on some black ice three feet away from the back door to her office.  Our coverage of the Court of Appeals’ split-decision in the case is here.

The Supreme Court, in a short per curiam order, concluded that the Industrial Commission failed to make findings on one of the key factual issues: whether the cement area where plaintiff fell was part of defendant-employer’s premises or part of the parking lot.  Accordingly, the Court remanded the case back to the Commission for additional fact-finding.

Burton Craige assisted with the amicus brief filed by the North Carolina Advocates of Justice in this case.

Categories: Judicial Decisions, News of the Firm Tags: Appeals, Burton Craige, Case Commentary, Compensable Injury, Employer Premises, Industrial Commission, NC Supreme Court, North Carolina Advocates for Justice, Workers' Compensation

The following briefs opposing defendants’ motion to dismiss have recently been filed in Dail, v. City of Goldsboro, et al.: Plaintiff’s First Response Brief and Plaintiff’s Second Response Brief.  Mr. Dail was convicted of a crime he did not commit and subsequently imprisoned for 18 years.  He was exonerated in 2007 when DNA evidence proved his innocence.  This evidence – which was later recovered – had been improperly handled and allegedly destroyed in 1995 by the City of Goldsboro.  The case is now before Judge Boyle in federal court (EDNC). Mr. Dail is represented by Burton Craige and Narendra Ghosh of Patterson Harkavy, as well as Spencer Parris and Christopher Olson at Martin & Jones.  More on the case can be found here.  This a summary of Plaintiff’s argument:

Dail has properly stated cognizable claims for relief arising from his wrongful incarceration. Dail has stated a valid claim for municipal liability under 42 U.S.C. § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978), because Defendants had a policy or practice of failing to properly inventory and safeguard evidence, including the evidence that ultimately exonerated Dail. Defendants’ unconstitutional conduct arbitrarily denied Dail’s liberty interest and resulted in his continued wrongful incarceration. Unlike the plaintiff in District Attorney’s Office for Third Judicial District v. Osborne, 129 S. Ct. 2308 (2009), the principal case upon which Defendants rely, Dail has not impermissibly used § 1983 to seek access to potential evidence, but instead properly invokes § 1983 to redress Defendants’ unconstitutional failure to reasonably maintain evidence.

Dail has also properly brought state law claims for negligence and obstruction of justice, which are not time-barred. Those claims did not accrue until August 27, 2007, when Defendants first notified Dail of the results of the DNA testing, or on August 28, 2007, when Dail was finally released from custody, and thus were timely filed on August 26, 2010. Finally, Dail has stated valid claims under the North Carolina Constitution based on Defendants’ violations of his rights to procedural due process and entitlement to exculpatory evidence.

This case presents weighty issues of constitutional significance in an evolving area of law. Consideration of the merits of the claims asserted in this action should follow development of a full factual record.

Categories: News of the Firm Tags: Briefs, Burton Craige, Civil Rights, Constitutional Law, EDNC, Exoneration, Narendra Ghosh, Negligence, Personal Injuries, Wrongful Conviction, Wrongful Incaceration

In Simmons v. United Mortgage and Loan Investment, LLC, the Fourth Circuit ruled for plaintiffs and reversed the district court in this wage and hour case.  The plaintiffs are Charlotte-based Junior Asset Managers for a mortgage company who were not paid overtime even though they worked more than 40 hours per week.  They brought claims under the Fair Labor Standards Act (FLSA) and North Carolina Wage and Hour Act (NCWHA) based on the failure to pay overtime.  The primary issue is whether the plaintiffs will be able to pursue their case as a collective and class action on behalf the other underpaid workers at the company.  The defendants tried to short-circuit the collective/class action process by tendering a limited settlement offer before other workers could be notified of the case.  The Fourth Circuit rejected this tactic, finding the settlement too indefinite to moot the case.  The Court remanded the case to the trial court to consider plaintiff’s motion to certify the collective action and plaintiffs’ amendments to the NCWHA claims.  Ann Groninger, Burton Craige, and Narendra Ghosh are representing the plaintiffs.

More from the opinion below:

Read more…

Categories: Judicial Decisions, News of the Firm Tags: Ann Groninger, Appeals, Burton Craige, Charlotte, Class Action, Collective Action, Fair Labor Standards Act, FLSA, Fourth Circuit, Labor and Employment, Narendra Ghosh, NCWHA, North Carolina Wage and Hour Act, Overtime, Results, Wage and Hour, Wages

On Thursday, the News and Observer published an opinion piece by Dr. James Bryan and Burton Craige entitled Harmed in the Hospital.  It begins: “In 1999, the Institute of Medicine reported that medical errors in American hospitals cause up to 98,000 deaths and more than 1 million injuries each year. In response to the institute’s report, hospitals in North Carolina and around the country announced initiatives to improve patient safety.  A recent article in The New England Journal of Medicine assessed the efficacy of these initiatives. Looking exclusively at hospitals in North Carolina, the article reported a shockingly high rate of preventable injuries to patients, and little or no improvement over time.”

Check out the whole article.

Categories: General News, News of the Firm Tags: Articles, Burton Craige, Medical Errors, News and Observer, Press

On December 22, Judge Voorhees in the Western District of North Carolina denied defendant’s motion for summary judgment in Fox v. Alexander County.  Terry Fox, the plaintiff, had been employed by Alexander County EMS since 1983 and had been promoted several times. In 2006, Fox was demoted and replaced by a younger worker, purportedly because of a slow response to a call.  The Judge, however, concluded that plaintiff had “ample evidence” that would allow a reasonable jury to believe that the reasons the county gave for demoting Fox – mainly that his team did not meet a standard response time on a call – were a pretext for age discrimination.

Accordingly, Fox’s claims for age discrimination under the Age Discrimination and Employment Act (ADEA) and under North Carolina state law can proceed to trial.  This decision is a significant victory because North Carolina federal courts rarely rule for employment law plaintiffs when deciding summary judgment motions.  Fox is represented by Joshua Van Kampen.

More from the opinion below:  Read more…

Categories: Judicial Decisions, News of the Firm Tags: ADEA, Age Discrimination and Employment Act, Alexander County, Joshua Van Kampen, Labor and Employment, NCEPA, North Carolina Equal Employment Practices Act, Pretext, Results, Summary Judgment, Western District of North Carolina

Last month, Hank Patterson attended a Congressional hearing held by the Workforce Protections Subcommittee of the House Education and Labor Committee, which examined state workers’ compensations systems.  The participants at the hearing discussed that “workers’ compensation systems have undergone numerous changes in the past decade as many states have begun strictly limiting workers’ compensation benefits – changes that may be stressing the Social Security Disability Insurance (SSDI) program. Additionally, the American Medical Association’s (AMA) guide to assessing injured workers has undergone significant changes in its latest edition, which has made consequential changes to injured workers’ evaluation procedure.”  See the committee site for details, as well as the comprehensive opening statement by Representative Lynn Woolsey.

Hank behind witness John Burton

Categories: News of the Firm Tags: AMA Guides, Congress, Hank Patterson, Hearing, House Education and Labor Committee, SSDI, Workers' Compensation

On Monday, December 6, firm partners Leto Copeley (Chapel Hill) and Ann Groninger (Charlotte) obtained a $250,000.00 verdict in Forsyth County Superior Court on behalf of their client, Thomas M. Sprinkle, against Hammaker East Emulsions, LLC, an asphalt manufacturing company.

Mr. Sprinkle was working for his employer Blythe Industries as a tack distributor truck driver on December 3, 2008, the day of his injury.  That morning his truck was empty and he drove to Hammaker East to have the truck loaded with tack.  After directing him to the loading dock and inserting the pipe into his truck, a Hammaker employee told Mr. Sprinkle that the pipes were clogged and it would be a little while before the tack started flowing.  Mr. Sprinkle remained on top of his truck, as he normally did, waiting for the tack to flow.  What he did not know, because Hammaker employees failed to tell him, was that, when the clog loosened, it would come out with a big “kapow.”  He also did not know that, in addition to blowing air through, and heating the pipes, the Hammaker employees left on the valve that allowed tack to flow from their system into Mr. Sprinkle’s truck.  When the clog finally loosened, the pipe came bursting out of the truck, spraying tack all over the truck and Mr. Sprinkle and knocking Mr. Sprinkle more than 10 feet to the ground.

Mr. Sprinkle’s knee was “pulverized” according to his doctor.  He had a complicated surgery to reconstruct his knee, a long period of recovery, and will likely need knee replacement surgery in the future.  After knocking him off his truck, Hammaker employees left Mr. Sprinkle sitting outside in the below-freezing temperature, until his supervisor arrived and called 911.  There was testimony that Hammaker’s plant manager, Bryan Miller, was slurring his words and reeked of alcohol immediately after Mr. Sprinkle’s fall.

Attorneys Valerie Johnson and Narendra Ghosh and paralegal Elizabeth Weatherspoon provided valuable assistance throughout the trial.

Categories: News of the Firm, Results Tags: Ann Groninger, Forsyth County, Industrial Accident, Leto Copeley, Narendra Ghosh, Negligence, Personal Injuries, Premises Liability, Results, Valerie Johnson