— Posts About Workers’ Compensation

Hank Patterson receives the 2014 Sarah H. Davis Excellence Award

On March 14, the North Carolina State Bar Board of Legal Specialization presented Hank Patterson with the 2014 Sarah H. Davis Excellence Award.  Hank has been a board certified specialist in Workers’ Compensation Law since 2000, when he served on the committee that established the specialization.

The Sarah H. Davis Excellence Award is given annually to a certified specialist who exemplifies excellence in his daily work as an attorney and serves as a model for other lawyers.  Special consideration is given for a long and consistent record of handling challenging matters successfully, for sharing knowledge and experience with other lawyers, for earning the respect and admiration of all other with whom the lawyer comes into contact in his daily work, and for high ethical standards.  Hank is the embodiment of these values; his accomplishments and character are truly beyond match.

Congratulations, Hank!

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Hank Honored with Lifetime Achievement Award from WILG

On October 7, Hank Patterson received the 2013 Lifetime Achievement Award from the Workers’ Injury Law & Advocacy Group.  Hank received the award at the organization’s annual convention in West Palm Beach, Florida, in recognition of his more than 35 years of tireless advocacy for workers’ rights and workplace safety.

Hank has long been active with WILG, a national organization of advocates for workers’ rights.  He currently serves on the organization’s Board of Directors and Federal Legislative Committee and frequently travels to Washington, D.C. to speak to legislators on its behalf.  WILG’s lifetime achievement award “is reserved for those individuals who have gone above and beyond the norm, and who continue to play a vital role in supporting WILG and advocating for the issues important to WILG’s mission.”

 

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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 Addresses Exception to Workers’ Comp Preemption

In Trivette v. Yount the defendant, a middle school principle, had a fire extinguisher removed from a classroom after a student had removed the safety pin and discharged the extinguisher.  The fire extinguisher was brought to the front office to avoid any further incident.  The following day the defendant placed the fire extinguisher on or around the plaintiff”s desk in the front office.  The plaintiff alleged that he was joking around with the fire extinguisher and when asked to stop joking “before it went off” said to the plaintiff, “Oh, you’re being such a baby, nothing is going to happen.”  The fire extinguisher discharged and sprayed the plaintiff’s body and face aggravating her preexisting neuro-muscular condition and causing extensive injury.

At issue in this case is the plaintiff’s attempt to seek damages from the defendant directly in a personal injury action under the Pleasants exception.  The defendant contends that he was Ms. Trivette’s employer and thus her relief is limited only to the Workers’ Compensation Act.  The Court of Appeals affirmed the trial court’s decision, stating that though the defendant was Ms. Trivette’s immediate supervisor and an administrator, he is not given the authority to “employ” any person as outlined in N.C. Gen. Stat. §115C-288.  Therefore, the defendant was a co-employee and not the employer.  The Court also found sufficient evidence that he acted in a willful, wanton and recklessly negligent manner because he knew that there was a risk of the extinguisher accidentally discharging and was asked not to joke around with it, but continued to do so causing harm to the plaintiff.

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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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Hank and Narendra to Present Paper at Workers’ Comp CLE

Hank Patterson and Narendra Ghosh will present a paper they co-wrote at the upcoming 18th 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.”

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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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