In the workers’ compensation case, Sellers v. FMC Corporation, the North Carolina Court of Appeals dealt with the issue of excusable neglect in filing appeals in the Industrial Commission.  At issue was the defendants’ untimely appeal of an Opinion and Award by a Deputy Commissioner, which had awarded the plaintiff –  who lost nearly all of his vision from prolonged exposure to intense light from welding torches – past and continuing disability benefits as well as attorneys’ fees.  Defendants failed to file their notice of appeal within 15 days because they confused documents from this case with a related case.  The Chair of the Commission twice rejected defendants’ appeal as untimely, but a panel of the Full Commission then ruled in the defendant’s favor and allowed their appeal to go forward.  The Court of Appeals concluded that the Full Commission did not have jurisdiction to hear defendant’s appeal because it was untimely filed and there was no excusable neglect.  The Court held that “defendant’s argument of confusion as its reason for delay does not amount to a showing of excusable neglect,” and thus upheld the Deputy Commissioner’s Opinion and Award.

The North Carolina Court of Appeals, in another recent workers’ compensation case, Campos-Brizvela v. Rocha Masonry LLC, affirmed the Industrial Commission’s decision granting medical and disability benefits to a man whose hand were nearly amputated while cleaning a concrete pump.  Defendants appealed, arguing that because the plaintiff was hired by an employee of Rocha Masonry “who lacked the authority to make such a decision,” he was not employed for purposes of worker’s compensation at the time of his injury.  The Court found that a foreman for the defendant hired the plaintiff to work at a job site, drove the plaintiff to the job, told him that he would be earning $9.00 an hour paid by means of a check drawn on the account the employer, and directed the activities of the plaintiff and of others while at the job site.  Based on these facts, the Court correctly stated that because “Plaintiff reasonably believed he had been hired by someone with the authority to do so” he was considered an employee for purposes of workers’ compensation.  This is consistent with the basic agency principle of apparent authority.  Thus, the definition of an “employee” in N.C. Gen. Stat. § 97-2(2) does not require employees to determine whether or not the person who hired them was “acting within the scope of [their] actual authority.”  The Court also upheld the finding that the plaintiff was disabled.

Categories: Judicial Decisions Tags: Apparent Authority, Appeals, Case Commentary, Employee Relationship, Excusable Neglect, Industrial Commission, Workers' Compensation

At a recent CLE addressing changes to North Carolina Workers’ Compensation law put on by the North Carolina Advocates for Justice, Hank Patterson presented his paper entitled “Changes to G.S. §97-29: Limitations on Total Disability Benefits – Cap and Credit”.  In the paper Hank summarizes and discusses the amendments to N.C. G.S. §97-29 in House Bill 709, which was signed into law June 24, 2011.

Categories: News of the Firm Tags: Articles, Disability Benefits, Hank Patterson, Legislation, NCAJ, Presentation, Total Disability, Workers' Compensation

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

On Friday, Hank Patterson spoke at the 16th Annual Workers’ Comp Roundtable, a CLE put on by the North Carolina Advocates for Justice.  Hank was part of a panel addressing the proper language for Social Security offset language.

Categories: News of the Firm Tags: Hank Patterson, Health Insurance, NCAJ, Presentation, Social Security, State Health Plan, Workers' Compensation

The North Carolina Supreme Court has sent a tricky workers’ compensation case back the Industrial Commission for additional fact-finding.  Cardwell v. Jenkins Cleaner involves a plaintiff who was injured when she slipped on some black ice three feet away from the back door to her office.  Our coverage of the Court of Appeals’ split-decision in the case is here.

The Supreme Court, in a short per curiam order, concluded that the Industrial Commission failed to make findings on one of the key factual issues: whether the cement area where plaintiff fell was part of defendant-employer’s premises or part of the parking lot.  Accordingly, the Court remanded the case back to the Commission for additional fact-finding.

Burton Craige assisted with the amicus brief filed by the North Carolina Advocates of Justice in this case.

Categories: Judicial Decisions, News of the Firm Tags: Appeals, Burton Craige, Case Commentary, Compensable Injury, Employer Premises, Industrial Commission, NC Supreme Court, North Carolina Advocates for Justice, 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

Last month, Hank Patterson attended a Congressional hearing held by the Workforce Protections Subcommittee of the House Education and Labor Committee, which examined state workers’ compensations systems.  The participants at the hearing discussed that “workers’ compensation systems have undergone numerous changes in the past decade as many states have begun strictly limiting workers’ compensation benefits – changes that may be stressing the Social Security Disability Insurance (SSDI) program. Additionally, the American Medical Association’s (AMA) guide to assessing injured workers has undergone significant changes in its latest edition, which has made consequential changes to injured workers’ evaluation procedure.”  See the committee site for details, as well as the comprehensive opening statement by Representative Lynn Woolsey.

Hank behind witness John Burton

Categories: News of the Firm Tags: AMA Guides, Congress, Hank Patterson, Hearing, House Education and Labor Committee, SSDI, Workers' Compensation

In Williams v. American Eagle Airlines, the North Carolina Court of Appeals addressed the interplay between union contracts and employment claims.  In this case, the plaintiff had been a part-time fleet service clerk for American Eagle, where she was a member of the Transport Worker’s Union, and was covered by a collective bargaining agreement.  She also had a full-time administrative position at Duke.  In 2006, the plaintiff injured her shoulder while moving luggage, started receiving workers’ compensation benefits, and eventually had surgery.  Following surgery, plaintiff resumed her duties at Duke, but did not return to American Eagle, apparently with representations that should not return to work at all.  Because of this inconsistency, American Eagle terminated her for dishonesty related to her workers’ compensation.

Rather than file a grievance through the Union, the plaintiff filed suit in state court, alleging claims for (1) breach of contract because she was fired without just cause; and (2) violation of the the North Carolina Retaliatory Employment Discrimination Act (“REDA”) because her termination was cause by her use of workers’ compensation.  At trial, the jury ruled against the plaintiff on the REDA claim, but found in her favor on the contract claims and awarded damages.

On appeal, the Court vacated the verdict because the contract claims were legally barred.  “When an employee’s claim is firmly rooted in a breach of a collective bargaining agreement and asserts no rights independent of that agreement, such claim is preempted by the Railway Labor Act (RLA).”  (The RLA governs unions in the airline industry.)  In other words, when an employee wants to challenge her termination as unlawful under a CBA, she usually must pursue the matter through the CBA’s grievance mechanism instead of in court.  As this plaintiff did that, the breach of contract claims were legally barred, and the verdict had to be vacated.

Categories: Judicial Decisions Tags: Airlines, Breach of Contract, Case Commentary, CBA, Grievance, Labor and Employment, NC Court of Appeals, REDA, TWU, Union, Workers' Compensation