In Taylor v. Town of Garner, we have filed this brief with the North Carolina Court of Appeals in this workers’ compensation case. Officer Taylor in a veteran of the Garner police force who was injured while providing official inter-agency assistance at an N.C. State football game. The primary issue is whether the Town of Garner is solely liable for Officer Taylor’s compensation, or whether both Garner and N.C. State are liable. Garner should be liable because Office Taylor was working at N.C. State pursuant to an official mutual aid and assistance agreement between Garner and N.C. State. Valerie Johnson and Narendra Ghosh are representing Officer Taylor.
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Categories: News of the Firm
Tags: Appeals, Briefs, Narendra Ghosh, NC Court of Appeals, Police Officers, Valerie Johnson, Workers' Compensation
Last week, the North Carolina Court of Appeals published four opinions concerns concerning workers’ compensation and personal injury cases. In Berardi v. Craven County Schools, the Court considered and described the Industrial Commission’s new process for expedited medical motions, which speed up resolution of medical treatment disputes in workers’ compensation cases. At issue was whether the employer could appeal a decision of the Commission granting one such motion. The Court held that it could not because the order was interlocutory, i.e. it did not resolve all issues, the usual prerequisite for appeals.
In Freeman v. Rothrock, the North Carolina Supreme Court had sent the case back to the Court of Appeals after reversing it and rejecting the judicial creation of a bar to recovery of worker’s compensation benefits when an employee made misrepresentations at the time of hiring about his physical condition. On remand, the Court addressed the other appealed issues from the Commission, and affirmed the Commission’s conclusions that the plaintiff is entitled to ongoing total disability benefits and that the employer is not entitled to a credit based on previous clinchers (settlements) with the plaintiff.
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Categories: Judicial Decisions
Tags: Appeals, Bicycle Accidents, Car Accident, Case Commentary, Clinchers, Disability Benefits, Governmental Immunity, Industrial Commission, Medical Motions, Negligence, Personal Injuries, Workers' Compensation
In Gregory v. W.H. Brown & Sons, the North Carolina Supreme Court has at the very least made a simple area of the law very complicated, and at worst dealt a severe blow to injured workers with little legal justification. At issue is the employee notice provision of the Workers’ Compensation Act, N.C.G.S. § 97-22, which requires injured employees to give written notice of their injury to their employer within 30 days unless the lack of notice did not harm the employer. At issue in this case is whether the employee’s failure to provide written notice — even though she immediately told her supervisor about the injury, received a back brace, and was sent to human resources — should bar her from receiving any compensation.
This case should have been simple, since just in 2008, the Supreme Court (yes, the very same court) decided unanimously that an employer’s actual knowledge of an employee’s work-related injury satisfies the notice requirement under N.C.G.S. § 97-22, eliminating the need for any inquiry about alleged prejudice to the employer. Richardson v. Maxim Healthcare/Allegis Group, 362 N.C. 657, 669 S.E.2d 582 (2008). The majority in Gregory, however, goes through a number of contortions to distinguish the case from Richardson, and along the way effectively reviews findings of fact de novo, which appellate courts are supposed to be barred from doing. The majority eventually holds, opaquely, that the Industrial Commission must make more specific findings and legal conclusions about the lack of prejudice to the employer before excusing notice, though it seems to implying that the appellate courts should not defer to any such conclusions. Troubling to say the least.
Categories: Judicial Decisions
Tags: Appeals, Case Commentary, Industrial Commission, NC Supreme Court, Notice to Employer, Workers' Compensation
Six of Patterson Harkavy’s attorneys have been named North Carolina “Super Lawyers” for 2010 in a recent study by Law & Politics magazine. The findings are published in the February 2010 edition of the North Carolina Super Lawyers magazine.
Patterson Harkavy’s 2010 North Carolina “Super Lawyers” are:
In addition, Jonathan Harkavy was named to the list of the Top 100 attorneys in North Carolina.
Law & Politics conducts a regional survey of lawyers who have been in practice for at least five years, asking them to nominate the best attorneys they’ve personally observed in action. In addition, the magazine’s attorney-led research department reviews nominees’ credentials based on a set of evaluation criteria. To ensure a diverse and well-balanced list, the research staff considers factors such as firm size, practice area and geographic location.
Categories: News of the Firm
Tags: Burton Craige, Hank Patterson, Jonathan Harkavy, Labor and Employment, Leto Copeley, Medical Malpractice, Michael Okun, Personal Injuries, Recognition, Super Lawyers, Valerie Johnson, Workers' Compensation
Hank Patterson has been recognized by the LexisNexis Workers’ Compensation Law Center as one of its Workers’ Compensation Notable People for 2009:
“These exceptional people have worked tirelessly on behalf of their clients and have made significant contributions this past year to the workers’ compensation system and/or the workplace.”
“The recipients of the 2009 awards were selected by various organizations and experts in the field, including the Workers Injury Law & Advocacy Group (WILG), the National Workers’ Compensation Defense Network (NWCDN), the California Applicants’ Attorneys Association (CAAA), the Workers’ Compensation Forum on LinkedIn, and selected members of the Larson’s National Workers’ Compensation Advisory Board.”
Hank’s accomplishments, service, and dedication are well described, as are some of his recent activities, including “trying to enact a revision to the Medicare Secondary Payor Act to solve some of the problems that workers’ compensation practitioners have had with satisfying the requirements of the Act regarding conditional payments and set asides.”
Categories: News of the Firm
Tags: Hank Patterson, Recognition, Workers' Compensation
The North Carolina Court of Appeals recently issued several workers’ compensation opinions, though they were all unpublished and did not break any new ground. In Pope v. Johns Manville, the Court upheld the Industrial Commission’s decision that the plaintiff had developed asbestosis from asbestos exposure during the 50’s and 60’s, that the testimony of plaintiff’s rebuttal expert was properly considered, and that the plaintiff was disabled due to his asbestosis under N.C.G.S. 97-54. In Bricker v. Rhoney Furniture House, the Court upheld the Commission’s conclusion that the plaintiff had shown that she had a compensable change of condition under N.C.G.S. 97-47, and that she was now totally disabled instead of partially disabled due to her back pain and depression.
In Sperry v. Koury Corp, the Court upheld the Commission’s conclusion that the plaintiff had failed to show that she was totally disabled. Finally, in Acre v. Mt. Wood Forestry, the Court concluded that the plaintiff — a paraplegic due to a car accident — was entitled to retroactive and prospective payment for attendant care provided by his family, handicapped accessible housing if his landlord will not agree to modification of his current housing, and other elements of a life care plan prepared by a certified life care planner.
Categories: Judicial Decisions
Tags: Asbestosis, Attendant Care, Case Commentary, Change of Condition, Industrial Commission, Life Care Plan, NC Court of Appeals, Workers' Compensation
The NPR program Fresh Air broadcast a story on January 11 titled “Wounded in Wars, Civilian Face Care Battle At Home.” It is based on the reporting on T. Christian Miller and his series of articles, “Disposable Army.” The story discusses what happens to military contractors who are injured while working abroad, and the incredible difficulties they face trying to obtain workers’ compensation under the Defense Base Act. Definitely worth checking out.
Categories: General News
Tags: Contractors, Defense Base Act, Military, NPR, Workers' Compensation
In Hojnacki v. Last Rebel Trucking, the Court of Appeals reversed the Industrial Commission, and ruled that one of the defendant-companies, Last Rebel Trucking, was also one of the plaintiff’s employers under the Workers’ Compensation Act. The plaintiff, Mr. Hojnacki, was an interstate truck driver who was hired by Last Rebel Trucking, a local North Carolina company, to drive its truck under the dispatch of Comtrak Logistics, a large trucking company based in Tennessee. On appeal, it was admitted that Comtrak was one of Mr. Hojnacki’s employers. In its opinion, the Court found that Last Rebel was also an employer because it paid Mr. Hojnacki for driving its truck following its general directions. The Court then remanded the case back to the Commission for a revised determination about jurisdiction and what benefits are owed to Mr. Hojnacki. Leto Copeley and Narendra Ghosh are representing Mr. Hojnacki.
Categories: Judicial Decisions, Results
Tags: Appeals, Employment Relationship, Industrial Commission, Leto Copeley, Narendra Ghosh, NC Court of Appeals, Results, Trucking Accidents, Workers' Compensation
Just a few days before Christmas, the Court of Appeals published another set of decisions. Barrett v. All Payment Services is workers’ comp case that deals with an injured stuntman. The plaintiff worked as a professional stuntman, and in 1993 he injured his back while performing a car jump stunt on the set of a television series called “Bandit, Bandit”. Although in pain, the plaintiff continued to work off an on until 2001, when he had two surgeries for his back. The Industrial Commission had awarded temporary partial disability benefits for the period between 1993 and 2001, and total temporary disability benefits from 2001 onwards. The Court affirmed in part and reversed in part. With regard to the first period, the Court reversed because although the Commission had found that the plaintiff had reduced ability to work as a stuntman, it completely failed to make any findings about whether he could work in any other field. Such a finding is necessary in determining disability. With regard to the latter period, the Court affirmed the Commission’s conclusion that the plaintiff was totally disabled.
But the Court also reversed the Commission’s conclusion on plaintiff’s average weekly wage (AWW). The AWW question was difficult because of the nature of the plaintiff’s work: temporary work for different employers, short periods where he was highly paid, with many periods of no pay. The Commission found that using the standard AWW calculation methods (average pay over different periods) would not be fair, so used Method 5 for exceptional cases. Specifically, it averaged the plaintiff’s pay from all employers for the year before he was hurt. Although sympathetic to this approach, the Court was compelled to reject it because the Supreme Court has repeatedly held that an AWW calculation cannot encompass pay from other employers besides the employer where the injury occurred. The Court didn’t have an alternate method to recommend to calculate a fair AWW; it just remanded. But it also asked the Supreme Court to take the case on discretionary review to provide the right answer in cases like this one.
Categories: Judicial Decisions
Tags: Average Weekly Wage, Case Commentary, Disability, NC Court of Appeals, Workers' Compensation
On December 8, the North Carolina Court of Appeals published a couple of workers’ compensation decisions. In the first, Heflin v. G.R. Hammonds Roofing, the Court faced an unusual situation involving Florida’s workers’ comp laws and a plaintiff’s efforts to delay her own case. Plaintiff’s husband was killed while working in Florida in 2004. Because the plaintiff’s workers’ comp claim in Florida was initially denied, she pursued a wrongful death claim instead, as allowed under Florida law. To keep that suit going, she did not want to pursue a possible workers’ compensation claim in North Carolina. However, when she tried to stay her case in North Carolina, the Industrial Commission ignored her request. The Court vacated the Commission’s decision and remanded, holding that the plaintiff’s motion for a stay must be addressed, and hinting that it should be granted.
In Van Dyke v. CMI Terex Corp., the Court again dealt with the exclusivity of workers’ compensation claims, i.e. that the availability of workers’ compensation bars personal injury lawsuits against the employer and certain related parties. In this case, the plaintiff brought suit because the decedent had been killed in an explosion at his workplace. At issue was whether a particular defendant was sufficiently related to the employer so that the personal injury case against it was barred. The defendant was the sole shareholder of an LLC (limited liability company), which was a member-manager of the employer, also an LLC. Long story short, because the appealing defendant was not running the employer-company, and was not sued for doing so, the exclusivity of workers’ compensation did not protect it.
Categories: Judicial Decisions
Tags: Case Commentary, Industrial Commission, NC Court of Appeals, Personal Injuries, Workers' Compensation, Wrongful Death
