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  The Court relied on the out-dated Hatchett case from 1954, which has been superceded by later Supreme Court decisions and legislative changes.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.

Categories: Judicial Decisions Tags: Appeals, Attendant Care, Case Commentary, Industrial Commission, NC Court of Appeals, Pre-Approval, Seagraves, Suitable Employment, Workers' Compensation

The North Carolina Court of Appeals published a decision in a free-speech retaliation case in  Ginsberg v. Board of Governors of the University of North Carolina.  The plaintiff, who worked at NC State University as a teaching assistant professor, contended that the University had violated her First Amendment free speech rights by punishing her in a hiring decision in retaliation for her protected speech.  On November 9, 2007, the plaintiff was reprimand by professors for purportedly showing bias during her introductory statements on a film that was being presented on the Israeli-Palestinian conflict.  Just weeks later, the plaintiff was de-listed as a first-tier candidate for an open tenure track position, and some of the professors who had reprimanded her were on the search committee.  Nonetheless, affirming the trial court’s grant of summary judgment, the Court concluded that the plaintiff had failed to present sufficient evidence of causation between her protected speech and the university’s hiring decision.  The Court held that she had not supported her claim “beyond mere speculation.”

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Civil Rights, Constitutional Law, First Amendment, Labor and Employment, NC Court of Appeals, North Carolina, Retaliation, Summary Judgment

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.

Categories: Judicial Decisions Tags: Appeals, Asbestos, Carrier on Risk, Case Commentary, Compensable Injury, Industrial Commission, NC Court of Appeals, Occupational Disease, Workers' Compensation

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.

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

The North Carolina Court of Appeals recently issued an interesting decision in Wang v. UNC-CH School of Medicine.  The majority agreed with the trial court in finding that employees who are excluded from the State Personnel Act are still entitled to protections under the North Carolina Whistleblower Act.  The plaintiff was an EPA Non-Faculty employee whose research grant funding from the NIH was rejected by her superior, thus eliminating funding for her position.  She filed a lawsuit under the Whistleblower Act and claimed that her termination was retaliation for a letter the employee sent to administrators that discussed errors in the grant proposals sent to the NIH for her superior’s research.  The Court of Appeals concluded that the plaintiff was covered by the Whistleblower Act because it covers “all State employees, public school employees, and community college employees.”  N.C. Gen. Stat. § 126-5(c1).  The Court, however, upheld the rejection of the plaintiff’s discrimination and constitutional claims.  Accordingly, the Court sent the case back to the University’s Board of Governors in order to permit the BOG to make adequate findings of fact addressing the Whistleblower Act claim.

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Labor and Employment, NC Court of Appeals, State Employee, UNC, Whistleblower Act

Burton Craige recently submitted an amicus brief with attorney Andrew J. Schwaba on behalf of the North Carolina Advocates for Justice in Jenkins v. Hearn Vascular Surgery P.A., addressing the question: “Is a child injured by prenatal medical malpractice barred from bringing a cause of action if the negligence occurred early in the pregnancy?”  A copy of the brief may be viewed here.

Summary of the Brief:  “Decades ago, North Carolina joined nearly every other state in recognizing that survivors of prenatal medical malpractice can bring negligence claims against the doctors responsible for their injuries and birth defects. … Our courts did not make recovery dependent on a fetus’s gestational age at the time of the negligence.

The question of whether North Carolina’s Wrongful Death Act, N.C.G.S. § 28A-18-2 creates a cause of action for the wrongful death of a nonviable fetus has no relation to claims of common law negligence.  When it is reasonably foreseeable that negligent care could injure a woman’s future child, doctors have the duty to avoid negligently placing the future child at risk of injury.  This duty does not depend on whether a fetus has reached the stage of viability.  Accepting a contrary rule would run counter to North Carolina law, break ranks with every other state, and deny a remedy to injured children who will suffer their entire lives because of avoidable medical negligence.”

Categories: News of the Firm Tags: amicus brief, Briefs, Burton Craige, Medical Malpractice, NC Court of Appeals, NCAJ, Negligence, North Carolina, Personal Injuries

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 North Carolina Court of Appeals published two opinions on workers’ compensation earlier this month.  The first, Blalock v. Southeastern Materials, involved an award of attorneys’ fees as a sanction for unreasonable defense.  N.C.G.S. § 97-88.1 permits the Industrial Commission to award a plaintiff the costs of his attorneys’ fees if the case had been defended without reasonable grounds.  Here, the Court reversed the Industrial Commission, and concluded that attorneys’ fees were appropriate in this case.  All of the medical experts, including defendants’, agreed that the plaintiff’s exposure to cinder block dust aggravated his respiratory condition, which clearly entitles him to workers’ compensation benefits.  Because defendants had no evidence to the contrary, their defense was unreasonable.

The second case, Gross v. Gene Bennett Co., involves the Parsons presumption for the compensability of medical conditions.   If a claim has been found to be or accepted as compensable, then there is a rebuttable presumption that a plaintiff’s medical conditions are related to the injury.  The Court held, however, “that in the absence of an admission of compensability of an injury by the employer or an agreement between the parties, the Parsons presumption cannot arise at the initial hearing on compensability before the Commission.”  Putting the assumption aside, the Court concluded that causation of the plaintiff’s back injury had not been proved because his doctor’s medical causation opinion was expressly qualified by an assumption that plaintiff had no prior back problems, and the Commission found that plaintiff had a prior back problem in 1997.

Categories: Judicial Decisions Tags: Aggravated Condition, Attorneys' Fees, Case Commentary, Industrial Commission, Medical Causation, NC Court of Appeals, Parsons Presumption, Sanction, Unreasonable Defense, Workers' Compensation

In Kee v. Caromont Health, Inc., the North Carolina Court of Appeals upheld the Industrial Commission’s rejection of a compromise settlement agreement.  The agreement originally reached by the parties involved the defendants paying plaintiff $20,000, the plaintiff resigning from her employment, and the plaintiff releasing all of her employment rights.  After plaintiff refused to sign the finalized version of the settlement agreement, the defendants tried to enforce the original agreement.

The Court and Industrial Commission both found the settlement agreement unenforceable.  Industrial Commission Rule 502 requires that in a workers’ compensation settlement, “no rights other than those arising under the provisions of the Workers’ Compensation Act are compromised or released.”  The agreement must also include that specific language.  Because the instant agreement involved the waiver of rights beyond workers’ compensation, and did not include the required language, it could not be enforced.

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