On July 20, 2010, the North Carolina Court of Appeals issued four published opinions regarding workers’ compensation.  The first decision, Morales-Rodriguez v. Carolina Quality Exteriors, Inc., concerned whether the plaintiff was an employee or an independent contractor of the defendant.  The plaintiff sought benefits for injuries sustained when he fell from a building at Nags Head, North Carolina, while applying stucco siding.  Workers’ compensation benefits can only be awarded to employees; independent contractors are not covered by the Workers’ Compensation Act.  In distinguishing between an employee and contractor, “The vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details.”  Factors to be considered are whether:

the person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.

Here, the Court credited the plaintiff’s testimony and documentary evidence that he was paid by the hour, was instructed on how to work, and did not hire his own assistants.  Thus he was found to be an employee and the Court upheld his award of benefits.

In the second case, Price v. Piggy Palace, the plaintiff, a 20-year-old cook, was injured when a co-worker slipped and fell, spilling approximately three gallons of hot grease onto the plaintiff.  As a result, the plaintiff suffered severe burns to his head, left arm, and legs.  The Full Commission had ordered that the plaintiff receive the recommended pulse dye laser treatment to aid his recovery, and awarded plaintiff travel expenses for his parents’ everyday travel to the hospital.  During his hospital stay, the plaintiff’s parents had gone to the hospital every day and his mother assisted in the treatment of his burns, particularly with washing and dressing them.  In affirming the award of travel expenses, the Court concluded that the plaintiff’s mother’s medical assistance and psychological support were reasonably necessary to provide relief for his condition, which is sufficient to award travel expenses as part of medical expenses under N.C. Gen. Stat. 97-25.

Categories: Judicial Decisions Tags: Case Commentary, Employee Requirement, Independent Contractors, Industrial Commission, Medical Expenses, NC Court of Appeals, Travel Expenses, Workers' Compensation

The North Carolina Court of Appeals has issued two workers’ compensation cases of note in its latest batch of decisions.  The first, Woodliff v. Fitzpatrick, concerned whether the plaintiff’s employer had three or more employees.  An employer is subject to the Workers’ Compensation Act only if it “regularly employs” three or more employees.  See N.C. Gen. Stat. § 97-2(1).  “The term ‘regularly employed’ connotes employment of the same number of persons throughout the period with some constancy.”  The plaintiff was a framing carpenter who worked for a general contractor.  The Court found that the plaintiff could not sufficiently prove that two other people worked with him on a regular basis, and also could not show that the other people who worked with him were employees rather than independent contractors.  Nor is there any presumption of jurisdiction even though the plaintiff proved that at least he was an employee rather than contractor.  Because the plaintiff could not meet his burden of proving that there were three or more employees, the Court concluded that Industrial Commission did not have jurisdiction over the claim.

The second case, Shupe v. City of Charlotte, concerned a police officer who injured her knee during her employment.  Her knee did not recover, and it was eventually determined that she arthroscopic surgery.  Charlotte opposed the surgery, which required the plaintiff to get an order from the Industrial Commission ordering the surgery.  Unfortunately, by the time this order was obtained, plaintiff was diagnosed with pancreatic cancer.  Her oncologist concluded that she could not have knee surgery because it would interfere with her cancer treatment.  Without the knee surgery, plaintiff could not return to work.  The Court affirmed the Industrial Commission’s award of temporary total disability benefits to plaintiff because her inability to work was caused by a combination of the compensable right knee injury, her subsequent inability to obtain corrective surgery because of her cancer, and the effects of her cancer treatments.  “Our courts have held that where a claimant is rendered totally unable to earn wages, partially as a result of a compensable injury and partially as a result of a non-work-related medical condition, the claimant is entitled to an award for total disability under G.S. § 97-29.”  The Court also would not let Charlotte escape liability by creating a temporary light-duty position for the plaintiff.  Because this position was a make-work temporary position, and not ordinarily available, it does not constitute suitable employment for the plaintiff to return to.

Categories: Judicial Decisions Tags: Case Commentary, Charlotte, Combination of Injuries, Construction Companies, Employee Requirement, Independent Contractors, Industrial Commission, NC Court of Appeals, Police Officers, Workers' Compensation