— Posts About Workers’ Compensation

NC Court of Appeals Reviews Workers’ Comp Cases

The North Carolina Court of Appeals decided two workers’ compensation cases of note this week.

The first, Salomon v. The Oaks of Carolina, involved a Certified Nurse’s Assistant (CNA) whose shoulder was injured when she was changing a partially paralyzed patient by herself with one arm and holding him up with the other.  The resident pushed back suddenly and the plaintiff heard a crack and had pain in her shoulder.  The defendants argued that the injury was not caused by accident because on the weekends the facility is often short staffed so it not uncommon for only one CNA to lift or move a resident.  The Court rejected defendants’ argument, holding that the unexpected event in this case was the sudden push back by the resident who does not typically resist assistance.  The injury therefore is by accident, and thus compensable. Regarding disability, the Court remanded the case to the Industrial Commission to make more detailed findings of fact.

The Second case, Thompson v. FedEx Ground/RPS, Inc., involved a woman who injured her back in 2000 when lifting luggage out of her rental car on a business trip.  Plaintiff appealed the Opinion and Award by the Industrial Commission, contending that the Commission failed to hold that there is a presumption of disability because of a prior award of disability from the Commission.  The Court, however, held that because the prior award only addressed the back injury and not the plaintiff’s alleged mysofascial pain syndrome and fibromyalgia, there was no presumption of disability and thus benefits would not be paid for the plaintiff’s other ailments.  The Court also upheld the Commission’s finding that the plaintiff’s alleged mysofascial pain syndrome and fibromyalgia were not related to her back injury.

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Brief Filed for Rawls in Workers’ Compensation Appeal

In Rawls v. Yellow Transportation, the Industrial Commission concluded that plaintiff Veran Rawls suffered a compensable injury by accident in 2005 and has been totally disabled since that time.   Defendants appealed.  Hank Patterson and Narendra Ghosh, representing Mr. Rawls, filed this brief in the Court of Appeals.  Summary of the brief: Read more…

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NC Court of Appeals Issues Decisions on Workers’ Compensation

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.

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Hank Presents Paper on 2011 Changes to Workers’ Comp Law

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.

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Patterson Harkavy Prevails in Workers’ Comp Case In Court of Appeals

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.

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Court Dismisses Appeal as Sought by Patterson Harkavy in Workers’ Comp Case

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.

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Hank Speaks at Workers’ Compensation Roundtable

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.

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NC Supreme Court Sends Parking Lot Case Back to Commission

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.

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NC Court of Appeals’ Latest Decisions on 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.

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NC Court of Appeals Rejects Workers’ Compensation Settlement Agreement

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.

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