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.

Categories: Judicial Decisions Tags: Case Commentary, Compensable Injury, Employer Premises, Industrial Commission, NC Court of Appeals, Parking Lot, Workers' Compensation

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…

Categories: Judicial Decisions Tags: Case Commentary, Compensable Injury, Death Benefits, Heart Attack, Heat Exposure, Industrial Commission, Injury by Accident, Knee Injury, NC Court of Appeals, Pickrell Presumption, Rowan Salisbury, Workers' Compensation

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

In Taylor v. Town of Garner, the Court of Appeals affirmed the decision of the Industrial Commission, agreeing that Officer Taylor is entitled to workers’ compensation benefits from the Town of Garner for the injury he suffered while working as a mounter officer at an N.C. State football game.  Because Officer Taylor was working pursuant to a mutual aid and assistance agreement between the Town of Garner and N.C. State, Garner remained responsible for his workers’ compensation.  Valerie Johnson and Narendra Ghosh are representing Officer Taylor.

Further analysis from the Court’s Opinion: Read more…

Categories: Judicial Decisions, News of the Firm Tags: Appeals, Industrial Commission, Mutual Aid Agreements, Narendra Ghosh, NC Court of Appeals, Police Officers, Results, Valerie Johnson, Workers' Compensation

Two opinions of note were issued by the North Carolina Court of Appeals yesterday.  The first, Beard v. Cumberland County Hospital System, concerns North Carolina’s Retaliatory Employment Discrimination Act (REDA).   REDA prohibits discrimination or retaliation against an employee for, among other things, filing a workers’ compensation claim.  N.C. Gen. Stat. § 95-241(a)(1).  The discrimination or retaliation can be a “discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.”  § 95-240(2).

In this case, the plaintiff had been injured at work, filed a workers’ compensation claim, and was receiving benefits.  Disputes arose regarding her benefits and her ability to work, which led to the REDA claim.  Specifically, the plaintiff claimed that the defendant retaliated against her by (1) refusing to allow her to be treated by her preferred neurosurgeon, Dr. Mark Roy, and (2) refusing to allow her to return to work in a light duty position when she could not physically perform her original position.

The Court held that neither action could constitute “retaliation” under REDA.  The first was purely a dispute about workers’ compensation benefits, was not connected to terms of employment, and thus had to be handled as a workers’ compensation issue in the Industrial Commission.  The second was not retaliation because, unlike the Americans with Disabilities Act, REDA does not impose an obligation on employers to accommodate an employee’s physical limitations.  If an employee cannot physically perform her job, REDA does not bar their separation.

Lee v. Wignat Road, LLC is a cautionary case.  The Court dismissed the appeal because the plaintiff-appellants failed to serve the notice of appeal on all the parties, specifically the non-appealling plaintiffs and some of the defendants.  The Court found the error deserved dismissal because it impaired the Court’s ability to hear from all parties, and because the appeal seemed to lack merit in any event.

Categories: Judicial Decisions Tags: ADA, Americans with Disabilities Act, Appeals, Case Commentary, Industrial Commission, Labor and Employment, NC Court of Appeals, REDA, Retaliation, Retaliatory Employment Discrimination Act, Workers' Compensation

The North Carolina Court of Appeals recently issued an interesting opinion in Gray v. RDU Airport Authority.  In the case, the plaintiff — a traffic control officer — was directing traffic in front of the airport terminals when he stepped backward onto a sloping part of a crosswalk and felt a sharp “pop,” later revealed to be a ruptured Achilles tendon.

The Court upheld the Industrial Commission’s denial of benefits on the grounds that there had been no injury “by accident.”  Workers’ compensation only covers injuries (as opposed to an occupational disease) that are caused by an “accident” connected to work.  The Court held: “An ‘accident’ is an “unlooked for event” and implies a result produced by a ‘fortuitous cause.’ … Thus, in order to be a compensable ‘injury by accident,’ the injury must involve more than the employee’s performance of his or her usual and customary duties in the usual way.”

Here, because the plaintiff was performing his job in his usual way, it was not unusual for him to step backwards of the crosswalk, the plaintiff did not trip or fall, and nothing unforeseen happened, the Court agreed that there was no “accident.”  The Court rejected plaintiff’s arguments that it was an unusual “misstep” or that his action was “accidental” because of his subjective perspective.

Although possibly limited by its facts, this case could become important as precedent.  It also goes to show that every single facet of a workers’ compensation case has to be thoroughly considered and litigated — potential pitfalls are everywhere.

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

In Garner v. Capital Area Transit, we have filed this brief with the North Carolina Court of Appeals in this workers’ compensation case.  Ms. Garner is a bus driver with Capital Area Transit in Raleigh who was injured was injured when another bus hit the bus she was driving.  The primary issue is whether the Industrial Commission had any basis for ignoring the doctor’s opinion that the accident aggravated Ms. Garner’s pre-existing back condition.  Valerie Johnson and Narendra Ghosh are representing Ms. Garner. Read more…

Categories: News of the Firm Tags: Appeals, Briefs, Industrial Commission, Narendra Ghosh, NC Court of Appeals, Valerie Johnson, Workers' Compensation

On Friday, in Baxter v. Danny Nicholson, Inc., the North Carolina Supreme Court upheld an Industrial Commission decision that defendants had attacked on the grounds that one of the Commissioners was not authorized to exercise his powers on the day of the decision.  The case arose out of the transition when one of the Commissioners was replaced in 2007.  On February 2, 2007, the three-member panel of the Commission signed the opinion and award in this case.  That same day, then-Governor Easley notified then-Commissioner Bolch (whose term had formally expired, but who was holding over pending a replacement) that he was appointing Commissioner McDonald to replace him.  The panel’s decision was filed on February 5, and McDonald took his oath of office on February 9.  The Governor’s office explained that there is a delay in taking the oath just so that the old Commissioner can finish and issue any pending cases that he worked on.

Reversing the Court of Appeals, the Supreme Court unanimously concluded that the authority of an appointed officer continues until the date on which his successor takes the oath of the office in question and thereby becomes duly qualified to begin performing the duties of that office.  The Court found that the laws on replacing state officers did not violate Article VI of the North Carolina Constitution.  As Commissioner Bolch could validly issue the decision, the Court remanded the case so that it could be considered on its merits.

Categories: Judicial Decisions Tags: Case Commentary, Constitutional Law, Industrial Commission, NC Constitution, NC Court of Appeals, NC Supreme Court, Workers' Compensation

Earlier this month, the North Carolina Court of Appeals issued several notable decisions.  In Soder v. Corvel Corp., the Court effectively reminded workers’ compensation litigants to timely file their appeals to the Industrial Commission.  In this case, after noticing his appeal of the Deputy Commissioner’s decision to the Full Commission, the plaintiff missed his deadline for filing his brief and Form 44 setting out his grounds for appeal.  The Full Commission dismissed the appeal because plaintiff’s brief was ultimately filed 21 days late, and the Court upheld the dismissal.  To make matters worse, plaintiff also failed to preserve his arguments that the Commission should have used its discretion to waive the deadline.

In Hawkins v. SSC Hendersonville Operating Company, the Court again addressed the locality rule for medical malpractice cases — the requirement that the plaintiff must produce an expert witness who can testify to a familiarity with the standards of practice in the same or a similar community as the defendant.  Although many medical fields effectively have a national standard of care, i.e. practices and standards that do not vary with geography, North Carolina remains bound to the old-fashioned locality rule.  In this case, plaintiff sought to establish the standard of care applicable to the care provided to her 86-year-old husband by defendant nursing home through the testimony of three medical experts.  Because these witnesses testified regarding a national standard of care rather than the standards of practice in the community in which defendant is located, the Court directed that judgment be entered for the defendant.

And in Pepper v. Norandal, USA, plaintiff appealed the denial of his workers’ compensation claim that he contracted asbestosis as a result of exposure to asbestos in the course of his employment with Norandal.  Several other co-employees had also brought similar claims, some of which were also decided by the Court on appeal too.  Here, the Industrial Commission found that plaintiff had indeed been exposed to asbestos in his employment, but found that he had not yet developed asbestosis.  The Court affirmed the decision.

Categories: Judicial Decisions Tags: Appeals, Asbestos, Asbestosis, Case Commentary, Industrial Commission, Locality Rule, Medical Malpractice, NC Court of Appeals, Nursing Home, Standard of Care, Workers' Compensation