— Posts About Disability Benefits

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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Hank Presents Paper on 2011 Changes to Workers’ Comp Law

At a recent CLE addressing changes to North Carolina Workers’ Compensation law put on by the North Carolina Advocates for Justice, Hank Patterson presented his paper entitled “Changes to G.S. §97-29: Limitations on Total Disability Benefits – Cap and Credit”.  In the paper Hank summarizes and discusses the amendments to N.C. G.S. §97-29 in House Bill 709, which was signed into law June 24, 2011.

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Latest COA Decisions on Workers’ Compensation

The North Carolina Court of Appeals published two decisions on workers’ compensation this month.  The first case, Kingston v. Lyon Construction, concerns workers’ compensation liens and third-party recoveries.  The plaintiff was exposed to asbestos on the job and developed illness as a result.  He was awarded workers’ compensation benefits, and brought and settled tort cases against manufacturers of the asbestos.  He then brought a motion to determine the workers’ compensation liens under N.C.G.S. § 97-10.2(j).  The Court of Appeals affirmed the trial court’s conclusions that the motion was proper even though only some of the third-party cases had been resolved, and that the workers’ compensation lien should be eliminated entirely because the third-party recoveries were reduced due to bankruptcies.

The second case, Nobles v. Coastal Power & Electric, concerns an issue of suitable employment.  The Industrial Commission had awarded temporary total disability benefits up to the time of the plaintiff’s maximum medical improvement, but did not find him disabled afterward.  The primary issue regarding disability concerned the defendant’s offer of a new position to plaintiff to accommodate his injury.

“The Workers’ Compensation Act provides that an injured employee is not entitled to compensation if he unjustifiably ‘refuses employment procured for him suitable to his capacity.’” N.C.G.S. § 97-32.  “Suitable employment is defined as any job that a claimant is capable of performing considering his age, education, physical limitations, vocational skills, and experience.”  However, “employers may not avoid paying compensation merely by creating for their injured employees makeshift positions not ordinarily available in the market.”  In this case, the Court upheld the Commission’s findings that the position offered to the plaintiff was suitable, and was not make-work because it had been offered previously and subsequently to others.

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NC Court of Appeals’ Latest Decisions on Workers’ Compensation and Personal Injuries

Last week, the North Carolina Court of Appeals published four opinions concerns concerning workers’ compensation and personal injury cases.  In Berardi v. Craven County Schools, the Court considered and described the Industrial Commission’s new process for expedited medical motions, which speed up resolution of medical treatment disputes in workers’ compensation cases.  At issue was whether the employer could appeal a decision of the Commission granting one such motion.  The Court held that it could not because the order was interlocutory, i.e. it did not resolve all issues, the usual prerequisite for appeals.

In Freeman v. Rothrock, the North Carolina Supreme Court had sent the case back to the Court of Appeals after reversing it and rejecting the judicial creation of a bar to recovery of worker’s compensation benefits when an employee made misrepresentations at the time of hiring about his physical condition.  On remand, the Court addressed the other appealed issues from the Commission, and affirmed the Commission’s conclusions that the plaintiff is entitled to ongoing total disability benefits and that the employer is not entitled to a credit based on previous clinchers (settlements) with the plaintiff.

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