On Friday, August 20, 2010, a Cleveland County jury returned a unanimous verdict for our client, Danny Rhodes.  Danny was injured at work in 1992 while working for a long haul trucker for Hersek Express Incorporated.  Since Hersek had no workers’ compensation insurance, Danny had to get a judgment from a Superior Court judge.  When he tried to collect the judgment in 2002, he learned that Hersek had become a new company – Diamond H Incorporated – and that Diamond H now owned all of the assets.  Danny’s former attorney filed a complaint against the companies and their individual owners alleging claims of fraudulent transfer, civil conspiracy and piercing the corporate veil.

We became involved in the case in 2008.   We obtained documents from the Department of Motor Vehicles, the companies’ bank and their accountant to show how the companies and its owners moved money and assets around.  The jury found that Hersek fraudulently transferred five trucks to the new company; they also found that Diamond H and the owners of the two companies controlled Hersek to the extent that it had no separate corporate identity.  Danny is now entitled to collect his judgment from Diamond H and the individual owners as well as from Hersek.  Danny was represented by Ann Groninger and Paige Kurtz of Sprouse & Kurtz, PLLC.

Categories: Results Tags: Ann Groninger, Cleveland County, Enforcing Judgment, Fraudulent Transfer, Litigation, Piercing Corporate Veil, Results, Trial, Workers' Compensation

The latest workers’ compensation opinion from the North Carolina Court of Appeals, Cardwell v. Jenkins Cleaner, addresses the “going and coming” rule.  “As a general rule, injuries occurring while an employee travels to and from work do not arise in the course of employment and thus are not compensable.”  This “going and coming” rule has further evolved such that “an employee injured while going to and from work on the employer’s premises is generally covered by the Act.”  Thus, injuries in a parking lot not owned by the employer are usually not covered by workers’ compensation.

In this case, the plaintiff was injured when she slipped on some black ice three feet away from the back door to her office.  The majority affirmed the Industrial Commission’s denial of benefits on the grounds that the plaintiff was hurt while she was still in the parking lot and had not yet reached the door.  Chief Judge Martin dissented.  He concluded that because plaintiff in fact was injured on the curb, which  is separate from the parking lot and right outside the employer’s office door, she was within a “reasonable margin” of the employer-provided access to the building, and thus suffered a compensable injury.

Categories: Judicial Decisions Tags: Case Commentary, Compensable Injury, Employer Premises, Industrial Commission, NC Court of Appeals, Parking Lot, Workers' Compensation

The third workers’ compensation decision that the North Carolina Court of Appeals issued last week was Reaves v. Industrial Pump Service, a case that had already been to the Court last year.  Under the Pickrell presumption, “When an employee is found dead under circumstances indicating that death took place within the time and space limits of the employment, in the absence of any evidence of what caused the death, courts should indulge a presumption or inference that the death arose out of the employment.”  The defendant must then show that the death occurred due to a non-compensable cause; otherwise the plaintiff prevails.  In addition, if an employee suffers a heart attack while conducting his work in the usual way, the injury is not compensable.  But, a heart attack can be a compensable accident if it “is due to unusual or extraordinary exertion . . . or extreme conditions.”  Here, plaintiff was working in extreme heat in repairing a basement pump.  Not feeling well, he went to his truck, where is partner found him dead from a heart attack not long afterward.  The Court concluded that the Industrial Commission correctly applied the presumption, that defendant had not rebutted it, and thus that plaintiff’s death was the result of a compensable accident, entitling his wife to workers’ compensation death benefits.

The last workers’ compensation case in this batch is a 2-1 split decision, Shay v. Rowan Salisbury Schools.  The plaintiff, a 15-year teacher, had always used the elevator to get to her second floor classroom.  The elevator broke, and for a month, she had to use the stairs to get to the classroom.  One day, while climbing the stairs, her knee “popped,” and she eventually had to have surgery for a meniscus tear.  Plaintiff did not stumble, fall, trip, slip, or twist her knee causing her injury.  The  Commission found this to be a compensable accident, over Commissioner Ballance’s dissent.  The Court reversed, finding the injury was not from an “accident.”  Continue for more on case: Read more…

Categories: Judicial Decisions Tags: Case Commentary, Compensable Injury, Death Benefits, Heart Attack, Heat Exposure, Industrial Commission, Injury by Accident, Knee Injury, NC Court of Appeals, Pickrell Presumption, Rowan Salisbury, Workers' Compensation

On July 20, 2010, the North Carolina Court of Appeals issued four published opinions regarding workers’ compensation.  The first decision, Morales-Rodriguez v. Carolina Quality Exteriors, Inc., concerned whether the plaintiff was an employee or an independent contractor of the defendant.  The plaintiff sought benefits for injuries sustained when he fell from a building at Nags Head, North Carolina, while applying stucco siding.  Workers’ compensation benefits can only be awarded to employees; independent contractors are not covered by the Workers’ Compensation Act.  In distinguishing between an employee and contractor, “The vital test is to be found in the fact that the employer has or has not retained the right of control or superintendence over the contractor or employee as to details.”  Factors to be considered are whether:

the person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.

Here, the Court credited the plaintiff’s testimony and documentary evidence that he was paid by the hour, was instructed on how to work, and did not hire his own assistants.  Thus he was found to be an employee and the Court upheld his award of benefits.

In the second case, Price v. Piggy Palace, the plaintiff, a 20-year-old cook, was injured when a co-worker slipped and fell, spilling approximately three gallons of hot grease onto the plaintiff.  As a result, the plaintiff suffered severe burns to his head, left arm, and legs.  The Full Commission had ordered that the plaintiff receive the recommended pulse dye laser treatment to aid his recovery, and awarded plaintiff travel expenses for his parents’ everyday travel to the hospital.  During his hospital stay, the plaintiff’s parents had gone to the hospital every day and his mother assisted in the treatment of his burns, particularly with washing and dressing them.  In affirming the award of travel expenses, the Court concluded that the plaintiff’s mother’s medical assistance and psychological support were reasonably necessary to provide relief for his condition, which is sufficient to award travel expenses as part of medical expenses under N.C. Gen. Stat. 97-25.

Categories: Judicial Decisions Tags: Case Commentary, Employee Requirement, Independent Contractors, Industrial Commission, Medical Expenses, NC Court of Appeals, Travel Expenses, Workers' Compensation

Last year, the State expanded the coverage of the North Carolina Guaranty Association to include structured settlement annuitities for North Carolina residents.   This is especially important for people who receive annuities as part of a workers’ compensation or personal injury settlement.  Coverage here.  One part of the new law’s language was less than clear, which required an amendment.  The amendment makes clear that annuity protection runs to the benefit of the actual beneficiary, the “payee” of the policy.  The text can be found here.  The amendment was enacted during the legislature’s short session this summer and signed by the governor.  Hank Patterson and Narendra Ghosh assisted with the legislative effort.

Categories: Legislative Action Tags: Hank Patterson, Legislation, Narendra Ghosh, NC Legislature, North Carolina, Personal Injuries, Structured Settlements, Workers' Compensation

The North Carolina Court of Appeals has issued two workers’ compensation cases of note in its latest batch of decisions.  The first, Woodliff v. Fitzpatrick, concerned whether the plaintiff’s employer had three or more employees.  An employer is subject to the Workers’ Compensation Act only if it “regularly employs” three or more employees.  See N.C. Gen. Stat. § 97-2(1).  “The term ‘regularly employed’ connotes employment of the same number of persons throughout the period with some constancy.”  The plaintiff was a framing carpenter who worked for a general contractor.  The Court found that the plaintiff could not sufficiently prove that two other people worked with him on a regular basis, and also could not show that the other people who worked with him were employees rather than independent contractors.  Nor is there any presumption of jurisdiction even though the plaintiff proved that at least he was an employee rather than contractor.  Because the plaintiff could not meet his burden of proving that there were three or more employees, the Court concluded that Industrial Commission did not have jurisdiction over the claim.

The second case, Shupe v. City of Charlotte, concerned a police officer who injured her knee during her employment.  Her knee did not recover, and it was eventually determined that she arthroscopic surgery.  Charlotte opposed the surgery, which required the plaintiff to get an order from the Industrial Commission ordering the surgery.  Unfortunately, by the time this order was obtained, plaintiff was diagnosed with pancreatic cancer.  Her oncologist concluded that she could not have knee surgery because it would interfere with her cancer treatment.  Without the knee surgery, plaintiff could not return to work.  The Court affirmed the Industrial Commission’s award of temporary total disability benefits to plaintiff because her inability to work was caused by a combination of the compensable right knee injury, her subsequent inability to obtain corrective surgery because of her cancer, and the effects of her cancer treatments.  “Our courts have held that where a claimant is rendered totally unable to earn wages, partially as a result of a compensable injury and partially as a result of a non-work-related medical condition, the claimant is entitled to an award for total disability under G.S. § 97-29.”  The Court also would not let Charlotte escape liability by creating a temporary light-duty position for the plaintiff.  Because this position was a make-work temporary position, and not ordinarily available, it does not constitute suitable employment for the plaintiff to return to.

Categories: Uncategorized Tags: Case Commentary, Charlotte, Combination of Injuries, Construction Companies, Employee Requirement, Independent Contractors, Industrial Commission, NC Court of Appeals, Police Officers, Workers' Compensation

In an unpublished decision last month, the North Carolina Court of Appeals issued Crocker v. Griffin, a case that touched on emotional distress claims in the workplace setting.  In the case, four plaintiffs brought suit against their employer because their boss, the director of the Transylvania County DSS, verbally abused and bullied them.  The plaintiffs brought claims of intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), and negligent supervision and retention.

On the IIED claims, the Court reaffirmed the principle that: “As a general rule, ‘it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to support a claim of intentional infliction of emotional distress.”  The Court found that the verbal abuse alleged in this case was not so outrageous as to rise to the level of an IIED claim.

With regard to the NIED claim, the trial court had dismissed the claim because it was covered by workers’ compensation, and thus had to be brought as a workers’ compensation claim.  Plaintiffs inexplicably failed to address this issue in their brief to the Court of Appeals, so the Court deemed the appeal waived on that issue.  In doing so, though, the Court said: “We note that mental or
psychological illness may be a compensable injury [under workers' compensation] if it has occurred as a result of an accident arising out of and in the course of the claimant’s employment.”

Categories: Judicial Decisions Tags: Appeals, Case Commentary, Intentional Infliction of Emotional Distress, Labor and Employment, NC Court of Appeals, Negligent Infliction of Emotional Distress, Psychological Injury, Workers' Compensation, Workplace Abuse

In Taylor v. Town of Garner, the Court of Appeals affirmed the decision of the Industrial Commission, agreeing that Officer Taylor is entitled to workers’ compensation benefits from the Town of Garner for the injury he suffered while working as a mounter officer at an N.C. State football game.  Because Officer Taylor was working pursuant to a mutual aid and assistance agreement between the Town of Garner and N.C. State, Garner remained responsible for his workers’ compensation.  Valerie Johnson and Narendra Ghosh are representing Officer Taylor.

Further analysis from the Court’s Opinion: Read more…

Categories: Judicial Decisions, News of the Firm Tags: Appeals, Industrial Commission, Mutual Aid Agreements, Narendra Ghosh, NC Court of Appeals, Police Officers, Results, Valerie Johnson, Workers' Compensation

In Evans v. Hendrick Automotive Group, we have filed this brief with the North Carolina Court of Appeals in this workers’ compensation case.  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.  Valerie Johnson and Narendra Ghosh are representing Ms. Evans.

Here is the summary of our argument:  Read more…

Categories: News of the Firm Tags: Appeals, Briefs, Business Trip, Charlotte, Compensable Injury, Narendra Ghosh, NC Court of Appeals, Valerie Johnson, Workers' Compensation

Two opinions of note were issued by the North Carolina Court of Appeals yesterday.  The first, Beard v. Cumberland County Hospital System, concerns North Carolina’s Retaliatory Employment Discrimination Act (REDA).   REDA prohibits discrimination or retaliation against an employee for, among other things, filing a workers’ compensation claim.  N.C. Gen. Stat. § 95-241(a)(1).  The discrimination or retaliation can be a “discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.”  § 95-240(2).

In this case, the plaintiff had been injured at work, filed a workers’ compensation claim, and was receiving benefits.  Disputes arose regarding her benefits and her ability to work, which led to the REDA claim.  Specifically, the plaintiff claimed that the defendant retaliated against her by (1) refusing to allow her to be treated by her preferred neurosurgeon, Dr. Mark Roy, and (2) refusing to allow her to return to work in a light duty position when she could not physically perform her original position.

The Court held that neither action could constitute “retaliation” under REDA.  The first was purely a dispute about workers’ compensation benefits, was not connected to terms of employment, and thus had to be handled as a workers’ compensation issue in the Industrial Commission.  The second was not retaliation because, unlike the Americans with Disabilities Act, REDA does not impose an obligation on employers to accommodate an employee’s physical limitations.  If an employee cannot physically perform her job, REDA does not bar their separation.

Lee v. Wignat Road, LLC is a cautionary case.  The Court dismissed the appeal because the plaintiff-appellants failed to serve the notice of appeal on all the parties, specifically the non-appealling plaintiffs and some of the defendants.  The Court found the error deserved dismissal because it impaired the Court’s ability to hear from all parties, and because the appeal seemed to lack merit in any event.

Categories: Judicial Decisions Tags: ADA, Americans with Disabilities Act, Appeals, Case Commentary, Industrial Commission, Labor and Employment, NC Court of Appeals, REDA, Retaliation, Retaliatory Employment Discrimination Act, Workers' Compensation