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.

Categories: Judicial Decisions Tags: Asbestos, Case Commentary, Disability Benefits, Industrial Commission, Liens, NC Court of Appeals, Personal Injuries, Suitable Employment, Third-party Suits, Workers' Compensation

Alston v. Federal Express is another decision on workers’ compensation liens, and how they are handled by superior courts under N.C.G.S. 97-10.2(j).  In a 10.2(j) action, “the judge shall determine, in his discretion, the amount, if any, of the employer’s lien, whether based on accrued or prospective workers’ compensation benefits, and the amount of cost of the third-party litigation to be shared between the employee and employer.”  The Court held that “cost” of third-party litigation does not include attorney fees, following the general rule that attorney fees are not included in “costs” unless expressly mentioned.  The Court also found that the trial court had failed to make adequate findings on why it reduced the defendant’s lien to $50,000.  Accordingly, the Court reversed and remanded for additional findings.

The Court also issued two unpublished opinions, O’Neal v. Dreams Unlimited and Peters v. Onslow County School District.  In both cases, the Court upheld the findings of the Industrial Commission becasue the Commission is the primary fact-finder in workers’ compensation cases, and its decisions on the facts will be upheld on appeal if supported by any competent evidence in the record, a fairly minimal standard.  The former case involved whether the plaintiff’s workplace injury was aggravated by a subsequent car accident and whether back surgery was reasonably necessary.  The latter case involved whether the plaintiff’s spinal condition was causally related to a fall at work.  In both cases, the Commission’s decision was affirmed.

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

Leggett v. AAA Cooper Transportation, Inc.: A workers’ compensation case can involve a separate personal injury case against a third party (not the employer) if the third party was responsible for the employee’s injury.  When such personal injury cases are resolved, the provider of the workers’ compensation benefits may have a lien on part of the recovery.  The amount of this lien can be set by the trial court in a procedure dictated by N.C. Gen. Stat. 97-10.2(j).  This opinion by the Court of Appeals affirms a trial court’s broad discretion to go so far as to eliminate the lien completely pursuant to 97-10.2(j).

Categories: Judicial Decisions Tags: Case Commentary, Liens, NC Court of Appeals, Personal Injuries, Workers' Compensation