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

The North Carolina Supreme Court denied the defendants’ petition for discretionary review (PDR) in Taylor v. Town of Garner.  The Court of Appeals decided earlier this year 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.  The Court’s denial of the PDR means that Officer Taylor will finally receive his benefits.  Valerie Johnson and Narendra Ghosh represent Officer Taylor.

Categories: Results Tags: Narendra Ghosh, NC Supreme Court, Police Officers, Results, Valerie Johnson, Workers' Compensation

The North Carolina Court of Appeals published two decisions on workers’ compensation this month.  The first case, Kingston v. Lyon Construction, concerns workers’ compensation liens and third-party recoveries.  The plaintiff was exposed to asbestos on the job and developed illness as a result.  He was awarded workers’ compensation benefits, and brought and settled tort cases against manufacturers of the asbestos.  He then brought a motion to determine the workers’ compensation liens under N.C.G.S. § 97-10.2(j).  The Court of Appeals affirmed the trial court’s conclusions that the motion was proper even though only some of the third-party cases had been resolved, and that the workers’ compensation lien should be eliminated entirely because the third-party recoveries were reduced due to bankruptcies.

The second case, Nobles v. Coastal Power & Electric, concerns an issue of suitable employment.  The Industrial Commission had awarded temporary total disability benefits up to the time of the plaintiff’s maximum medical improvement, but did not find him disabled afterward.  The primary issue regarding disability concerned the defendant’s offer of a new position to plaintiff to accommodate his injury.

“The Workers’ Compensation Act provides that an injured employee is not entitled to compensation if he unjustifiably ‘refuses employment procured for him suitable to his capacity.’” N.C.G.S. § 97-32.  “Suitable employment is defined as any job that a claimant is capable of performing considering his age, education, physical limitations, vocational skills, and experience.”  However, “employers may not avoid paying compensation merely by creating for their injured employees makeshift positions not ordinarily available in the market.”  In this case, the Court upheld the Commission’s findings that the position offered to the plaintiff was suitable, and was not make-work because it had been offered previously and subsequently to others.

Categories: Judicial Decisions Tags: Asbestos, Case Commentary, Disability Benefits, Industrial Commission, Liens, NC Court of Appeals, Personal Injuries, Suitable Employment, Third-party Suits, Workers' Compensation

In an opinion issued two weeks ago, Johnston v. Duke University Medical Center, the North Carolina Court of Appeals concluded that the plaintiff’s occupational disease workers’ compensation claim was time-barred.  The plaintiff had been a nurse at Duke, and developed several conditions in her left foot: plantar fasciitis, tarsal tunnel syndrome, and Achilles tendinopathy.  These conditions developed over several years from the 1990′s through 2005, but the plaintiff did not file this case until 2007.

N.C. Gen. Stat. 97-58 specifies the statute of limitations for occupational disease claims.  Under that provision, “the two-year period within which an occupational disease claim must be filed with the Commission … begins to run when the employee learns that he or she has a work-related disability stemming from that occupational disease.”  In this case, the Court found that because all of the plaintiff’s left foot conditions were continuous and interrelated, and that the plaintiff had been told by her physician that her condition had been caused by work as early as 2001, the plaintiff had missed the two-year deadline to file her claim.  The Court rejected the plaintiff’s contention that each different diagnosis should be treated as a separate possible claim.

Categories: Judicial Decisions Tags: Case Commentary, Duke University Medical Center, NC Court of Appeals, Occupational Disease, Statute of Limitations, Workers' Compensation

Burton Craige and Leto Copeley are speaking this weekend at the North Carolina Advocates for Justice Mountain Magic Conference.  Burton is leading a panel entitled “Collateral Attack on the Collateral Source Rule.”  He will lead a discussion about the national trend to allow defendants to introduce evidence of the amount actually paid for medical expenses, rather than limiting the evidence to the amount billed.

Leto will be speaking about employment law issues that workers’ compensation practitioners should be aware of, such as the ADA and FMLA.  Wage and hour issues are also important ones to consider.  As this short paper prepared by Leto and Narendra Ghosh states, “Workers’ compensation practitioners should remain vigilant for potential wage and hour violations as they pursue claims for their clients. When getting information on a client’s average weekly wage, for instance, it is important to at least consider whether your client is getting paid fully, including for overtime, under the wage and hour laws.”

Categories: News of the Firm Tags: ADA, Articles, Average Weekly Wage, Burton Craige, FMLA, Labor and Employment, Leto Copeley, Narendra Ghosh, NCAJ, Personal Injuries, Presentation, Wage and Hour, Workers' Compensation

Earlier this month, the North Carolina Court of Appeals issued an opinion concerning the viability of plaintiff’s Woodson claim — a wrongful death tort action based on an injury sustained at work.  In Valenzuela v. Pallet Express Inc., the Court once again rejected a Woodson in what seemed to be an egregious case.  Typically, plaintiffs injured at work can only bring claims under workers’ compensation, and not tort actions, such as for wrongful death.  There is an exception, however, for injuries resulting from intentional misconduct by the employer or “conduct that, while not categorized as an intentional tort, was nonetheless substantially certain to cause serious injury or death to the employee.”

In this case, the plaintiff alleged that the employer: 1) removed safety guards from the shredder which sacrificed employee safety for increased production; 2) assigned an underage employee to work on heavy equipment in violation of State and federal law; 3) failed to provide Nery with proper training on the shredder; and 4) failed to ensure that trained personnel were present when the shredder was operated.  The underage 17-year-old worker was left unattended and was killed when he apparently fell into the giant shredder machine.  Nonetheless, the Court concluded that the employer’s alleged was not reckless enough to constitute a valid Woodson claim.  Given the egregiousness of the conduct here, it is hard to imagine any non-intentional conduct that the Court would accept under Woodson.

Categories: Judicial Decisions Tags: Case Commentary, NC Court of Appeals, Tort, Woodson Claims, Workers' Compensation, Wrongful Death

On September 21, 2010, the North Carolina Court of Appeals released its latest batch of opinions, which included one published case on workers’ compensation.  In Pope v. Johns Manville, the Court issued a second opinion in this case after granting defendants’ petition for rehearing.  The Court’s first opinion in this case, issued earlier this year, affirmed the Industrial Commission’s decision that the plaintiff had developed asbestosis from asbestos exposure during the 50′s and 60′s and that he was disabled due to his asbestosis.  In this second opinion, the Court reconsidered the Commission’s decision on how much disability pay the plaintiff was due.

The Commission had calculated the plaintiff’s average weekly wage (AWW) based on his earnings in 2003, the last year he worked.  Plaintiff was not diagnosed with asbestosis until 2005, after he had retired.  The Court held that because the plaintiff is considered “injured” on the date of his asbestosis diagnosis, his AWW must be calculated from that point.  Of course, because someone retired has no weekly wages, an exceptional method of measuring lost wages is probably appropriate under the fifth prong of the AWW definition of N.C. Gen. Stat. 97-2(5).  The Court remanded the case to the Commission to reconsider the AWW issue and make the appropriate findings to support a decision on the AWW question.

Categories: Judicial Decisions Tags: Asbestos, Asbestosis, Average Weekly Wage, Case Commentary, NC Court of Appeals, Workers' Compensation