— Posts About Compensable Injury

Burton and Narendra Secure Court of Appeals Win in Medical Malpractice Discovery Dispute

In Hammond v. Saini, __ N.C. App. ___, 748 S.E.2d 585 (2013), the Court of Appeals ruled in favor of Patterson Harkavy’s client, Plaintiff Judy Hammond.  Ms. Hammond suffered severe injuries from an operating room fire while undergoing surgery to remove a possible basal cell carcinoma from her face.  In her subsequent medical malpractice suit, the Defendants refused to produce certain documents addressing the fire and notes made by the hospital’s risk manager following the fire.  The trial court rejected the Defendants’ argument that these items were privileged and granted Ms. Hammond’s motion to compel discovery.  Burton Craige and Narendra Ghosh represented Ms. Hammond on Defendants’ appeal of that decision.

On September 3, a Court of Appeals panel published a unanimous opinion in favor of Ms. Hammond, affirming the order compelling production of the Defendants’ reports, and remanding the issue of whether the risk manager’s notes were protected by the Work Product Doctrine to the trial court.  For more information, read Burton and Narendra’s brief to the Court of Appeals.


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Appeals Court Decides Two Workers’ Comp Cases

The North Carolina Court of Appeals recently published decisions in the following cases:

In Coffey v Weyerhaeuser Co., the Court,based on N.C.G.S. 97-38 in the Workers’ Compensation Act, was tasked with determining “whether [Barber's] death occurred within two years of the Commission’s final determination of disability.”  Dennis Barber, Sr.  was diagnosed with asbestosis in 1997 and laryngeal cancer in 1998; he subsequently died in 2009.  A settlement agreement was signed in October of 1999 and approved by the NC Industrial Commission in November of that year.  The agreement in particular said “the date of approval of this Agreement shall be the date of final determination of disability by the Industrial Commission.”  In order for death benefits to be paid, the death of an injured employee must occur within six years of the injury or within two years of a final determination of disability by the Commission.  The Court held that the 1999 approval of the settlement, which addressed the issue of permanent disability, constitute a final determination, which rendered the plaintiff’s claim for death benefits untimely.

And in Carr v Department of Health & Human Services, the defendants appealed, contending that plaintiff’s cervical spine injury was not “caused, exacerbated, or aggravated” when she was injured in a 2008 fall.  The Court of Appeals rejected their argument on causation because the expert physician stated, in part, that causation from the injury was “more likely than not.”  The Court remanded on the issue of disability for the Commission to address prongs two and three of the Russell test.

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NC COA Decides Handful of Workers’ Comp Cases

Late last month, the North Carolina Court of Appeals published their opinions in the following workers’ compensation cases:

Archie v. Kirk:  The plaintiff worked for Edward Kirk changing billboard advertisements.  Kirk provided necessary tools and protection gear to the plaintiff.  In 2006, on a larger job for which Kirk hired an additional two workers, the plaintiff was electrocuted and burnt by a “power pole” which was near the billboard.  On appeal from the Industrial Commission , the defendants claimed that the plaintiff was not an employee and that Kirk did not have three or more regular employees working on the day the plaintiff was injured.  The Court of Appeals affirmed the Commission’s determinations that there was an employer-employee relationship, the plaintiff was not an independent contractor, and the plaintiff was entitled to medical and disability benefits.

Chandler v. Atlantic Scrap & Processing:  The plaintiff cleaned buildings owned by Atlantic Scrap.  She was walking down a flight of concrete stairs and fell backwards striking her head, neck and shoulder.  She suffered a traumatic brain injury which caused severely diminished cognitive functioning.  Her husband had to provide attendant care services because she needed care 24-7 and defendants had denied in-home attendant care services.  On appeal, the Court of Appeals held that the Industrial Commission had to award interest to Mr. Chandler for the attendant care services he provided because such services constitute “medical compensation.”  The Court also rejected all of defendant’s issues on appeal, including the well-worn argument that attendant care awards require pre-authorization from the Commission.

Malloy v. Davis Mechanical Inc.: The defendant appealed the NC Industrial Commission’s determination that the mediated settlement agreement was not fair and just and thus unenforceable.  The Court held that the Commission had erred in reviewing new medical bills which were not available at the time of the mediation and also erred when they considered the plaintiff’s child support lien.  The Court remanded back to the Commission to reconsider whether the mediated settlement agreement was fair and just excluding the aforementioned materials from consideration.

Shaw v. U.S. Airways: Mr. Curry Shaw sustained a lower back injury in 2000 when lifting luggage.  In 2008 Mr. Shaw died, and “the Commission concluded that Curry Shaw died of methadone toxicity – a direct result of his methadone use and a proximate result of his original compensable back injury.”  Defendants appealed, contending that Mr. Shaw’s death was not proximately related to his compensable work injury.  Given that Mr. Curry was taking Methadone because of his workplace injury, the Court stated that “to assert that Curry Shaw’s death was solely the result of a non-work related liver disease is an untenable argument”  and rejected Defendant’s contention.

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NC Appeals Court on Asbestos and Workers’ Compensation

In Maudlin v. A.C. Corp et al., the North Carolina Court of Appeals addressed a multi-pronged asbestos case.  The case involved a man who worked as a pipefitter for more than 19 years at the company.  He was exposed to insulation that contained asbestos while preforming his work, was diagnosed with laryngeal cancer in 1997, and was forced to stop working due to his disabilities following surgery.  He was later diagnosed, in 2007, with lung cancer, lymph node cancer, asbestosis, and pleural plaques.  The North Carolina Industrial Commission concluded that these were compensable occupational diseases and that plaintiff was totally disabled as a result since July 1997.  The Commission also concluded that Argonaut was the insurance company covering the risk and thus responsible for compensating the employee for these diseases.  Argonaut appealed the commission’s Opinion and Award.

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.

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NC Court of Appeals Reviews Workers’ Comp Cases

The North Carolina Court of Appeals decided two workers’ compensation cases of note this week.

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.

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Court Dismisses Appeal as Sought by Patterson Harkavy in Workers’ Comp Case

In Evans v. Hendrick Automotive Group, the North Carolina Court of Appeals published this opinion, ruling that defendants improperly appealed a non-final decision of the Industrial Commission, and dismissing their appeal.  Ms. Evans was an office manager for a Hendrick dealership in Texas.  She was injured during a business trip to Charlotte, while she was walking back from an employer-sponsored dinner to her hotel.  The primary issue is whether the Industrial Commission correctly concluded that Ms. Evans’ accident arose out of and was in the course of her employment and properly awarded her workers’ compensation benefits.  The case now returns to the Commission.  Narendra Ghosh helped represent Ms. Evans.

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NC Supreme Court Sends Parking Lot Case Back to Commission

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.

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Latest Workers’ Compensation Decision from NC Court of Appeals

Earlier this week, the North Carolina Court of Appeals published its latest workers’ compensation decision in Hedges v. Wake County Public School System.  In this case, the plaintiff had stumbled and fell when she walked into a workroom to make copies of payroll materials.  The plaintiff did not trip on something; she simply stumbled and fell.  Because of the awkward way in which she fell, she tore her rotator cuff, which required surgery and three months out of work.  For no good reason, the defendants denied the claim.

The plaintiff won in front of the Deputy Commissioner and Full Commission, and was also awaded attorneys’ fees because of the defendants’ unreasonable defense.  On defendants’ appeal, the Court correctly affirmed both the award of benefits and attorneys’ fees.  Details below:  Read more…

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NC Court of Appeals on Workers’ Compensation for Parking Lot Injuries

The latest workers’ compensation opinion from the North Carolina Court of Appeals, Cardwell v. Jenkins Cleaner, addresses the “going and coming” rule.  “As a general rule, injuries occurring while an employee travels to and from work do not arise in the course of employment and thus are not compensable.”  This “going and coming” rule has further evolved such that “an employee injured while going to and from work on the employer’s premises is generally covered by the Act.”  Thus, injuries in a parking lot not owned by the employer are usually not covered by workers’ compensation.

In this case, the plaintiff was injured when she slipped on some black ice three feet away from the back door to her office.  The majority affirmed the Industrial Commission’s denial of benefits on the grounds that the plaintiff was hurt while she was still in the parking lot and had not yet reached the door.  Chief Judge Martin dissented.  He concluded that because plaintiff in fact was injured on the curb, which  is separate from the parking lot and right outside the employer’s office door, she was within a “reasonable margin” of the employer-provided access to the building, and thus suffered a compensable injury.

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NC Court of Appeals Decisions on Workers’ Compensation — Part 2

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…

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