Hank Patterson and Narendra Ghosh will present a paper they co-wrote at the upcoming 18^th Annual Workplace Torts & Workers’ Comp CLE, which is put on by the NCAJ and will be held at the Friday Center in Chapel Hill on Friday December 2, 2011.  Their paper is entitled “Future Medical Treatment: Substance and Procedure for § 97-25.1”.  Hank is also a co-chair of the CLE.

Introduction:

“The provision for extending the two-year time limitation for medical treatment is not often discussed, but it can make a profound difference for claimants who need medical care in the future. This paper discusses the development of this provision in N.C. Gen. Stat. § 97-25.1, as well as the substantive and procedural issues raised by the statute.”

Categories: News of the Firm Tags: Articles, CLE, Future Medical Treatment, Hank Patterson, Medical Compensation, Narendra Ghosh, NCAJ, Presentation, Workers' Compensation

In International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 289 v. Verizon South, Inc., the Union has filed suit in federal court (Middle District of North Carolina) to compel the company to engage in arbitration regarding the termination of an employee.  On behalf of the Union, Patterson Harkavy has filed this response brief and this reply brief.  Mike Okun and Narendra Ghosh are representing the Union.

This is a summary of the Union’s argument:  Because national labor policy strongly favors arbitration as the means for resolving labor disputes, courts must apply a presumption of arbitrability to collective bargaining agreements that contain arbitration provisions, and direct the parties to arbitrate unless the parties have expressly agreed not to arbitrate a particular matter.  Any doubt or ambiguity regarding arbitrability is to be resolved in favor of arbitration. 

Here, the parties’ collective bargaining agreement and separate settlement agreement for grievant Brian Pollard require arbitration of the grievance regarding Pollard’s termination because Pollard was not a “new employee” when he was rehired in 2010.  Moreover, to the extent the settlement agreement is ambiguous about permitting Pollard’s grievance to be arbitrated, that ambiguity must be construed in favor of arbitration.  Therefore, defendant’s motion to dismiss should be denied, and plaintiff’s motion to compel arbitration – filed this same day – should be granted.

Categories: News of the Firm Tags: Briefs, Compel Arbitration, IBEW, Labor and Employment, Labor Arbitration, MDNC, Michael Okun, Narendra Ghosh, Unions

In, Cape Fear Public Transit Authority v. Amalgamated Transit Union (ATU) Local 1328, the Wilmington transit authority is challenging a labor arbitration in favor of the Union, which ordered a terminated employee be put back to work.  This case is before federal Judge Boyle in the Eastern District of North Carolina.  Yesterday, Judge Boyle ruled for the Union, concluding that there were no grounds to reverse the arbitration decision.  Finding the city’s lawsuit to be “without justification,” Judge Boyle also awarded the Union its attorneys’ fees for defending this case.  Here is the opinion.  Mike Okun and Narendra Ghosh are representing the Union.

Categories: News of the Firm, Results Tags: ATU, EDNC, Judge Boyle, Labor and Employment, Michael Okun, Narendra Ghosh, Results, Unions

In, Cape Fear Public Transit Authority v. Amalgamated Transit Union (ATU) Local 1328, the Wilmington transit authority is challenging a labor arbitration that was in favor of the Union, and which ordered a terminated employee be put back to work.  This case is before Judge Boyle in federal court (EDNC).  On behalf of the Union, Patterson Harkavy has filed the following brief, response brief, and reply brief.  Mike Okun and Narendra Ghosh are representing the Union.

Here is a summary of the Union’s position: 

First, plaintiff’s claim should be dismissed for failure to timely effect service because plaintiff did not properly serve defendant before the 120-day deadline elapsed, and had no good cause for its failure to do so.  Second, plaintiff’s claim should be dismissed because plaintiff CFPTA was not a party to the arbitration decision that it seeks to vacate, has no standing to challenge the decision, and has provided no relevant authority to demonstrate that it is permitted to bring this suit under 28 U.S.C. § 185. 

Third, plaintiff’s claim should be dismissed for failure to state a valid claim to vacate the arbitration decision.  The arbitrator correctly determined that Professional Transit Management of Wilmington, Inc. (“PTM”) violated the controlling collective bargain agreement (“CBA”) in terminating the grievant, and to the extent there was ambiguity in the operative language of the CBA, the arbitrator’s interpretation cannot be disturbed by the Court.  Under the standard enunciated by the Supreme Court, plaintiff has also failed to show how the arbitrator’s decision to reinstate the grievant violates any clearly established public policy.  For all these reasons, the Court should award defendant its reasonable attorneys’ fees incurred in this litigation because plaintiff’s motion to vacate the arbitration award has no arguable basis in the law.

Categories: News of the Firm Tags: ATU, Briefs, EDNC, Judge Boyle, Labor and Employment, Labor Arbitration, Michael Okun, Narendra Ghosh, Unions

A civil rights complaint has been filed in federal court on behalf of Plaintiff Gregory Flynt Taylor against Peter Duane Deaver and other former employees of the North Carolina State Bureau of Investigation seeking damages for his wrongful incarceration.  The complaint may be viewed here.

In April 1993, Mr. Taylor was wrongfully convicted and sentenced to life in prison for a murder two years earlier which he did not commit.  The Defendants worked in the SBI Crime Lab and wrote a deliberately misleading report about evidence collected from the crime scene.  Because this report misrepresented the facts and the findings of the laboratory tests, Mr. Taylor was convicted of a crime he did not commit and spent the next 17 years in prison.  On February 17, 2011 a three-judge panel unanimously found that Mr. Taylor was innocent of the charge of murder and ordered his immediate release.  Mr. Taylor was given a full Pardon of Innocence by Governor Beverly Perdue on May 21, 2010.

Mr. Taylor’s complaint brings claims under the federal constitution, North Carolina Constitution, and North Carolina common law.  Mr. Taylor is represented by Burton Craige and Narendra Ghosh, as well as Spencer Parris and Christopher Olson at Martin & Jones.

Categories: News of the Firm Tags: Burton Craige, Civil Rights, Complaint, Constitutional Law, EDNC, Exoneration, Narendra Ghosh, Negligence, Personal Injuries, Wrongful Conviction, Wrongful Incaceration

In Campbell v. National Pipe and Plastics Inc. the Plaintiff, Sherron Campbell, was represented in part by Narendra Ghosh of Patterson Harkavy.  The North Carolina Court of Appeals ruled for the plaintiff in affirming the North Carolina Industrial Commission’s Opinion and Award, which had awarded workers’ compensation benefits to Ms. Campbell.

Ms. Campbell suffered injuries to her right hand and fingers when attempting to stop her fall by grabbing a nearby pipe.  This injury and resulting disability also aggravated Ms. Campbell’s depression, which had been manageable up to this point.  In the appeal, the defendants contended that the Commission erred in assigning weight to Dr. Williams’ testimony, arguing that they considered it to be speculative because he did not identify a specific degree to which Ms. Campbell’s compensable injury by accident had exacerbated her preexisting condition.   However, the Court held that Dr. Williams did not need to determine to what degree the workplace injury exacerbated the psychological condition, but only that it was a factor in the exacerbation of Ms. Cambell’s preexisting condition.  The defendants also contended that the Commission did not determine if plaintiff’s statements to her doctor were credible, but the Court ruled that a doctor is entitled to rely on information provided by the patient to form his opinion.  And, in any event, the Court of Appeals does not have authority to reweigh evidence or credibility determinations after the Commission has considered it.  Defendants’ final argument that the Commission erred in giving weight to Dr. Prakken’s opinion was overruled by the Court, which concluded that the Commission does not need to explain why it has given weight to particular evidence.

Categories: Judicial Decisions, News of the Firm Tags: Appeals, Case Commentary, Industrial Commission, Injury by Accident, Narendra Ghosh, NC Court of Appeals, Pre-existing condition, Results, Workers' Compensation

In Evans v. Hendrick Automotive Group, the North Carolina Court of Appeals published this opinion, ruling that defendants improperly appealed a non-final decision of the Industrial Commission, and dismissing their appeal.  Ms. Evans was an office manager for a Hendrick dealership in Texas.  She was injured during a business trip to Charlotte, while she was walking back from an employer-sponsored dinner to her hotel.  The primary issue is whether the Industrial Commission correctly concluded that Ms. Evans’ accident arose out of and was in the course of her employment and properly awarded her workers’ compensation benefits.  The case now returns to the Commission.  Narendra Ghosh helped represent Ms. Evans.

Categories: Judicial Decisions, Results Tags: Appeals, Charlotte, Compensable Injury, Interlocutory Appeal, Narendra Ghosh, NC Court of Appeals, Results, Valerie Johnson, Workers' Compensation

The following briefs opposing defendants’ motion to dismiss have recently been filed in Dail, v. City of Goldsboro, et al.: Plaintiff’s First Response Brief and Plaintiff’s Second Response Brief.  Mr. Dail was convicted of a crime he did not commit and subsequently imprisoned for 18 years.  He was exonerated in 2007 when DNA evidence proved his innocence.  This evidence – which was later recovered – had been improperly handled and allegedly destroyed in 1995 by the City of Goldsboro.  The case is now before Judge Boyle in federal court (EDNC). Mr. Dail is represented by Burton Craige and Narendra Ghosh of Patterson Harkavy, as well as Spencer Parris and Christopher Olson at Martin & Jones.  More on the case can be found here.  This a summary of Plaintiff’s argument:

Dail has properly stated cognizable claims for relief arising from his wrongful incarceration. Dail has stated a valid claim for municipal liability under 42 U.S.C. § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978), because Defendants had a policy or practice of failing to properly inventory and safeguard evidence, including the evidence that ultimately exonerated Dail. Defendants’ unconstitutional conduct arbitrarily denied Dail’s liberty interest and resulted in his continued wrongful incarceration. Unlike the plaintiff in District Attorney’s Office for Third Judicial District v. Osborne, 129 S. Ct. 2308 (2009), the principal case upon which Defendants rely, Dail has not impermissibly used § 1983 to seek access to potential evidence, but instead properly invokes § 1983 to redress Defendants’ unconstitutional failure to reasonably maintain evidence.

Dail has also properly brought state law claims for negligence and obstruction of justice, which are not time-barred. Those claims did not accrue until August 27, 2007, when Defendants first notified Dail of the results of the DNA testing, or on August 28, 2007, when Dail was finally released from custody, and thus were timely filed on August 26, 2010. Finally, Dail has stated valid claims under the North Carolina Constitution based on Defendants’ violations of his rights to procedural due process and entitlement to exculpatory evidence.

This case presents weighty issues of constitutional significance in an evolving area of law. Consideration of the merits of the claims asserted in this action should follow development of a full factual record.

Categories: News of the Firm Tags: Briefs, Burton Craige, Civil Rights, Constitutional Law, EDNC, Exoneration, Narendra Ghosh, Negligence, Personal Injuries, Wrongful Conviction, Wrongful Incaceration

In Simmons v. United Mortgage and Loan Investment, LLC, the Fourth Circuit ruled for plaintiffs and reversed the district court in this wage and hour case.  The plaintiffs are Charlotte-based Junior Asset Managers for a mortgage company who were not paid overtime even though they worked more than 40 hours per week.  They brought claims under the Fair Labor Standards Act (FLSA) and North Carolina Wage and Hour Act (NCWHA) based on the failure to pay overtime.  The primary issue is whether the plaintiffs will be able to pursue their case as a collective and class action on behalf the other underpaid workers at the company.  The defendants tried to short-circuit the collective/class action process by tendering a limited settlement offer before other workers could be notified of the case.  The Fourth Circuit rejected this tactic, finding the settlement too indefinite to moot the case.  The Court remanded the case to the trial court to consider plaintiff’s motion to certify the collective action and plaintiffs’ amendments to the NCWHA claims.  Ann Groninger, Burton Craige, and Narendra Ghosh are representing the plaintiffs.

More from the opinion below:

Read more…

Categories: Judicial Decisions, News of the Firm Tags: Ann Groninger, Appeals, Burton Craige, Charlotte, Class Action, Collective Action, Fair Labor Standards Act, FLSA, Fourth Circuit, Labor and Employment, Narendra Ghosh, NCWHA, North Carolina Wage and Hour Act, Overtime, Results, Wage and Hour, Wages

On Monday, December 6, firm partners Leto Copeley (Chapel Hill) and Ann Groninger (Charlotte) obtained a $250,000.00 verdict in Forsyth County Superior Court on behalf of their client, Thomas M. Sprinkle, against Hammaker East Emulsions, LLC, an asphalt manufacturing company.

Mr. Sprinkle was working for his employer Blythe Industries as a tack distributor truck driver on December 3, 2008, the day of his injury.  That morning his truck was empty and he drove to Hammaker East to have the truck loaded with tack.  After directing him to the loading dock and inserting the pipe into his truck, a Hammaker employee told Mr. Sprinkle that the pipes were clogged and it would be a little while before the tack started flowing.  Mr. Sprinkle remained on top of his truck, as he normally did, waiting for the tack to flow.  What he did not know, because Hammaker employees failed to tell him, was that, when the clog loosened, it would come out with a big “kapow.”  He also did not know that, in addition to blowing air through, and heating the pipes, the Hammaker employees left on the valve that allowed tack to flow from their system into Mr. Sprinkle’s truck.  When the clog finally loosened, the pipe came bursting out of the truck, spraying tack all over the truck and Mr. Sprinkle and knocking Mr. Sprinkle more than 10 feet to the ground.

Mr. Sprinkle’s knee was “pulverized” according to his doctor.  He had a complicated surgery to reconstruct his knee, a long period of recovery, and will likely need knee replacement surgery in the future.  After knocking him off his truck, Hammaker employees left Mr. Sprinkle sitting outside in the below-freezing temperature, until his supervisor arrived and called 911.  There was testimony that Hammaker’s plant manager, Bryan Miller, was slurring his words and reeked of alcohol immediately after Mr. Sprinkle’s fall.

Attorneys Valerie Johnson and Narendra Ghosh and paralegal Elizabeth Weatherspoon provided valuable assistance throughout the trial.

Categories: News of the Firm, Results Tags: Ann Groninger, Forsyth County, Industrial Accident, Leto Copeley, Narendra Ghosh, Negligence, Personal Injuries, Premises Liability, Results, Valerie Johnson