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.

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Compensable Injury, Disability, Industrial Commission, Injury by Accident, NC Court of Appeals, Presumptions, Workers' Compensation

Just a few days before Christmas, the Court of Appeals published another set of decisions.  Barrett v. All Payment Services is workers’ comp case that deals with an injured stuntman.  The plaintiff worked as a professional stuntman, and in 1993 he injured his back while performing a car jump stunt on the set of a television series called “Bandit, Bandit”.  Although in pain, the plaintiff continued to work off an on until 2001, when he had two surgeries for his back.  The Industrial Commission had awarded temporary partial disability benefits for the period between 1993 and 2001, and total temporary disability benefits from 2001 onwards.  The Court affirmed in part and reversed in part.  With regard to the first period, the Court reversed because although the Commission had found that the plaintiff had reduced ability to work as a stuntman, it completely failed to make any findings about whether he could work in any other field.  Such a finding is necessary in determining disability.  With regard to the latter period, the Court affirmed the Commission’s conclusion that the plaintiff was totally disabled.

But the Court also reversed the Commission’s conclusion on plaintiff’s average weekly wage (AWW).  The AWW question was difficult because of the nature of the plaintiff’s work: temporary work for different employers, short periods where he was highly paid, with many periods of no pay.  The Commission found that using the standard AWW calculation methods (average pay over different periods) would not be fair, so used Method 5 for exceptional cases.  Specifically, it averaged the plaintiff’s pay from all employers for the year before he was hurt.  Although sympathetic to this approach, the Court was compelled to reject it because the Supreme Court has repeatedly held that an AWW calculation cannot encompass pay from other employers besides the employer where the injury occurred.  The Court didn’t have an alternate method to recommend to calculate a fair AWW; it just remanded.  But it also asked the Supreme Court to take the case on discretionary review to provide the right answer in cases like this one.

Categories: Judicial Decisions Tags: Average Weekly Wage, Case Commentary, Disability, NC Court of Appeals, Workers' Compensation

The Americans with Disabilities Act (ADA) Amendments Act of 2008 (ADAAA) was passed last year and went into effect on January 1, 2009.  The Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of existing regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

The Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with issuing regulations that provide more specific rules concering the act.  According to a Notice by the EEOC about the ADAAA, the Act retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act: Read more…

Categories: Legislative Action Tags: ADA, ADAAA, Disability, Discrimination, EEOC, Labor and Employment, Regulations