— Posts About Industrial Commission

Court of Appeals Rejects REDA Claim by Pro Se Plaintiff

In Fatta v M & M Properties Management, Inc. the North Carolina Court of Appeals heard an appeal by a pro se plaintiff of the trial court’s granting of summary judgement.  Plaintiff worked for the company in one of their hotels as a property manager.  During Plaintiff’s training, he was injured while cleaning a room.  He reported the injury to his supervisor and said he would file workers’ compensation paperwork if the injury was more severe than a pulled muscle.  A day after he reported his injury to his supervisor, Plaintiff was given a first and final written warning; five days after the warning Plaintiff was terminated.  Plaintiff filed a Form 18 with the North Carolina Industrial Commission five days following his termination.

Plaintiff contends that the company violated the Retaliatory Employment Discrimination Act (REDA) by firing him while he was engaged in protected activity, namely threatening to file a workers’ compensation claim.  The Court of Appeals agreed that threatening to file a workers’ compensation claim is protected activity.  However, the Court affirmed the trial court’s order because Plaintiff could not show a causal relationship between his termination and threatening to file a claim.  Plaintiff argued that the close proximity in time between when he reported his injury and was terminated showed that Defendant had unfairly retaliated against him for threatening to file a workers’ compensation claim.  However the Court stated that the proximity of the date of injury to the termination date is not enough, standing alone, to show a causal connection.

Given the really close timing here, the Court’s decision seems incorrect.  But, it appears that because the plaintiff was not represented by an attorney, he did not develop the facts in his case as well as he could have. There well could have been more incriminating facts that were not put before the court.

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Rawls Prevails in Court of Appeals in Workers’ Compensation Case

The North Carolina Court of Appeals ruled in favor of one of the firm’s clients in an appeal brought by the defendants.  In Rawls v. Yellow Roadway Corporation, the Full Commission awarded Veran Rawls ongoing total disability compensation since his 2005 truck accident.  Defendants argued that the Full Commission had erred in several findings of fact, claiming that they were not based on competent medical evidence.  The Court rejected all of these arguments and affirmed in full the Commission’s decision.  Hank Patterson and Narendra Ghosh represented Mr. Rawls in the appeal.

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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 Court of Appeals’ Recent Workers’ Compensation Cases

The North Carolina Court of Appeals heard two workers’ compensation cases on appeal and decided them earlier this month.

The first, Mehaffey v. Burger King involved a manager at Burger King who suffered a compensable knee injury while at work.  In the North Carolina Industrial Commission’s Opinion and Award, the Plaintiff was awarded retroactive attendant care fees for his wife, home modifications for a power wheel chair, a hospital bed, and transportation to doctors appointments.   Defendants argued that the Commission erred in awarding retroactive payments for attendant care because they were not pre-approved.  Shockingly, the Court agreed, even though the it recently held in the Boylan and Ruiz cases that pre-approval was not necessary for attendant care services.  The Court relied on the out-dated Hatchett case from 1954, which has been superceded by later Supreme Court decisions and legislative changes.  Perhaps the Court will agree to rehear the case, which appears to be a clear mistake.

Next, in Keeton v. Circle K, the Court affirmed the Industrial Commission’s Opinion and Award, which granted the defendants’ application to suspend benefits.  Keeton appealed the Commission’s decision, contending that she should be entitled to continuing benefits because she made a reasonable effort to return to work and there was no actual refusal to work.  The Court rejected these contentions, concluding there was sufficient evidence to show that the available manager position with Circle K fit within her physical restrictions, was “suitable employment,” and the Plaintiff made no effort to return to work at Circle K.  Thus, deeming the Plaintiff’s actions to be a voluntary refusal to accept suitable employment, the Court affirmed the denial of benefits under N.C. Gen. Stat. 97-32.

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NC COA Examines Public Duty Doctrine

The North Carolina Court of Appeals reversed the decision of the North Carolina Industrial Commission in Ray v. NC Department of Transportation.  The case involved the death of a motorist and her passengers in 2002 when an eroded section of pavement caused her vehicle to go off the roadway, she corrected, and hit an oncoming car head on.  The plaintiff alleged that that NC DOT was negligent in maintaining the roadway and not repairing the eroded section which they knew was dangerous or should have known was a dangerous to motorists.  The Commission dismissed the case based on the public duty doctrine which can be used as a defense by the State of North Carolina from certain tort claims.  Reversing, the Court of Appeals concluded:

“ This case does not involve a failure to inspect or to police, but a failure to repair a defective section of roadway. There is no “hazard created by others” or important discretionary decision which requires the government to be protected under the public duty doctrine.”

Burton Craige wrote an amicus brief on behalf of the North Carolina Advocates for Justice for this case.  The brief can be accessed here.

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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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Brief Filed for Rawls in Workers’ Compensation Appeal

In Rawls v. Yellow Transportation, the Industrial Commission concluded that plaintiff Veran Rawls suffered a compensable injury by accident in 2005 and has been totally disabled since that time.   Defendants appealed.  Hank Patterson and Narendra Ghosh, representing Mr. Rawls, filed this brief in the Court of Appeals.  Summary of the brief: Read more…

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NC Court of Appeals Issues Decisions on Workers’ Compensation

In the workers’ compensation case, Sellers v. FMC Corporation, the North Carolina Court of Appeals dealt with the issue of excusable neglect in filing appeals in the Industrial Commission.  At issue was the defendants’ untimely appeal of an Opinion and Award by a Deputy Commissioner, which had awarded the plaintiff –  who lost nearly all of his vision from prolonged exposure to intense light from welding torches – past and continuing disability benefits as well as attorneys’ fees.  Defendants failed to file their notice of appeal within 15 days because they confused documents from this case with a related case.  The Chair of the Commission twice rejected defendants’ appeal as untimely, but a panel of the Full Commission then ruled in the defendant’s favor and allowed their appeal to go forward.  The Court of Appeals concluded that the Full Commission did not have jurisdiction to hear defendant’s appeal because it was untimely filed and there was no excusable neglect.  The Court held that “defendant’s argument of confusion as its reason for delay does not amount to a showing of excusable neglect,” and thus upheld the Deputy Commissioner’s Opinion and Award.

The North Carolina Court of Appeals, in another recent workers’ compensation case, Campos-Brizvela v. Rocha Masonry LLC, affirmed the Industrial Commission’s decision granting medical and disability benefits to a man whose hand were nearly amputated while cleaning a concrete pump.  Defendants appealed, arguing that because the plaintiff was hired by an employee of Rocha Masonry “who lacked the authority to make such a decision,” he was not employed for purposes of worker’s compensation at the time of his injury.  The Court found that a foreman for the defendant hired the plaintiff to work at a job site, drove the plaintiff to the job, told him that he would be earning $9.00 an hour paid by means of a check drawn on the account the employer, and directed the activities of the plaintiff and of others while at the job site.  Based on these facts, the Court correctly stated that because “Plaintiff reasonably believed he had been hired by someone with the authority to do so” he was considered an employee for purposes of workers’ compensation.  This is consistent with the basic agency principle of apparent authority.  Thus, the definition of an “employee” in N.C. Gen. Stat. § 97-2(2) does not require employees to determine whether or not the person who hired them was “acting within the scope of [their] actual authority.”  The Court also upheld the finding that the plaintiff was disabled.

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