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:

Under the Workers’ Compensation Act, a plaintiff is entitled to compensation for an injury “only if (1) it is caused by an ‘accident,’ and (2) the accident arises out of and in the course of employment.” See N.C. Gen. Stat. § 97-2(6).  An accident is “an unlooked for and untoward event which is not expected or designed by the person who suffers the injury;’ the elements of an ‘accident’ are the interruption of the routine of work and the introduction thereby of unusual conditions likely to result in unexpected consequences.”  The majority held that because the plaintiff had been using the stairs for a month, it had become part of her normal routine, so injuring herself while simply climbing the stairs was not an accident.  Judge Wynn (still waiting to get on the Fourth Circuit) dissented, arguing that because the plaintiff was not “regularly expected” to use the stairs — everyone expected the elevator would be fixed quickly — stair-climbing was not part of her usual routine, was an unusual activity, and thus her injury was an “accident.”

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.

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.

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.”

Further analysis from the Court’s Opinion:
The Court summarized its decision:

Where the Garner Police Department and the N.C. State Campus Police Department substantially complied with the requirements of the Agreement pursuant to N.C. Gen. Stat. § 160A-288 and it is undisputed that Officer Taylor sustained an injury arising out of and during the course of his employment on 27 October 2007, the Commission did not err by concluding that Town of Garner is responsible for payment of sums due to plaintiff pursuant to the provisions of Chapter 97 of the North Carolina General Statutes.

The Court correctly focused on the intent of the parties and the unchallenged fact that Officer Taylor could not lawfully have worked at N.C. State without being under the mutual aid agreement:

As the Commission correctly found, in order for Officer Taylor to work as a mounted patrol officer at N.C. State, he would have had to have been working pursuant to the Agreement to have any police powers outside of his jurisdiction. Otherwise, his presence would have served no purpose. The Commission’s unchallenged findings of fact establish that the parties clearly intended for Officer Taylor to work the N.C. State football game pursuant to the Agreement.

Although Garner tried to base their argument on how Officer Taylor was paid for his work by N.C. State instead of Garner, the Court rejected this: “unchallenged findings of fact show that the parties mutually agreed to the payment arrangement for Officer Taylor when working mounted patrol at N.C. State football games.”

Because the Legislature clearly intended for law enforcement officers to be protected for purposes of workers’ compensation benefits when acting in this capacity, we hold the parties substantially complied with the requirements of N.C. Gen. Stat. § 160A-288(a) for personnel and administrative purposes. The Commission’s unchallenged findings of fact support the Commission’s conclusion of law that on 27 October 2007 Officer Taylor was working pursuant to the Agreement and that Town of Garner is liable for his compensable injury pursuant to N.C. Gen. Stat. § 160A-288.

Here is the summary of our argument: 

As the Industrial Commission concluded, plaintiff Cheri Evans is entitled to compensation for an injury by accident that occurred on April 19, 2005, during a four-day business trip in Charlotte.  Plaintiff was seriously injured after she drank  alcohol provided by the defendant-employer and then left the  raucous business dinner to return to her hotel.  The risk of injury was increased due to the nature of the work dinner, and her injury had its origins in that risk.  Moreover, this Court has conclusively established that an employee on a business trip who is injured while returning to her hotel must be compensated under the Workers’ Compensation Act.  Thus, plaintiff’s injury, a rational consequence of the circumstances of her employment, is compensable.

Defendants’ contention that plaintiff loses her right to compensation because she engaged in negligent or “thrill-seeking” behavior should be rejected for two reasons.  First, this Court had held that an employee’s injury remains compensable even if it is caused by the employee’s own negligence or foolish activity.  Second, it was plaintiff’s consumption of alcohol provided by her employer that led to her loss of inhibition and contributed to her accident.  Therefore, plaintiff’s injury by accident was causally related to her employment because it was contributed to by defendant-employer’s provision of alcohol at an employer-sponsored dinner.

Plaintiff is thus entitled to total and partial wage loss compensation, among other benefits, as awarded by the Commission.  Defendants cannot meet their burden of proving plaintiff constructively refused suitable employment by being terminated because the undisputed facts on appeal demonstrate that (1) plaintiff’s termination was related to her compensable injury; and (2) a non-disabled employee would not have been terminated for the same reasons she was terminated.  In addition, the uncontested factual findings establish that plaintiff is disabled under the Act, and thus entitled to benefits, because her new employment – suitable to her qualifications and injury-related physical limitations – has reduced her wages.  Not only are the relevant facts unchallenged on appeal, but are also amply supported by competent evidence in the record.  Accordingly, the Commission’s Opinion and Award should be affirmed in full.

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.

The Court upheld the Industrial Commission’s denial of benefits on the grounds that there had been no injury “by accident.”  Workers’ compensation only covers injuries (as opposed to an occupational disease) that are caused by an “accident” connected to work.  The Court held: “An ‘accident’ is an “unlooked for event” and implies a result produced by a ‘fortuitous cause.’ … Thus, in order to be a compensable ‘injury by accident,’ the injury must involve more than the employee’s performance of his or her usual and customary duties in the usual way.”

Here, because the plaintiff was performing his job in his usual way, it was not unusual for him to step backwards of the crosswalk, the plaintiff did not trip or fall, and nothing unforeseen happened, the Court agreed that there was no “accident.”  The Court rejected plaintiff’s arguments that it was an unusual “misstep” or that his action was “accidental” because of his subjective perspective.

Although possibly limited by its facts, this case could become important as precedent.  It also goes to show that every single facet of a workers’ compensation case has to be thoroughly considered and litigated — potential pitfalls are everywhere.