Jeanne H Washburn
HORSEPLAY IN WAKE COUNTY MIDDLE SCHOOL TURNS INTO “TERRIBLE ACCIDENT”

HORSEPLAY IN WAKE COUNTY MIDDLE SCHOOL TURNS INTO “TERRIBLE ACCIDENT”

A sad story came out of Cary just a few short months ago. At East Cary Middle School in Wake County, one student pushed another who then collided with the 12-year-old victim. As the victim was falling to the ground, he hit his head on a table. According to school sources, the child suffered a “major head injury” as a result of the fall. At the time of this writing, there have been no further updates other than that the child is in good condition at WakeMed.

While not specifically implicated by these facts, people often ask about the potential for negligence claims against minors. It’s not quite as simple as saying whether minors are, or are not, negligent. North Carolina has generally adopted what is known as the “rule of sevens.”
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Under the rule of sevens, a child under the age of seven is considered incapable of negligence. A child between the age of seven and fourteen is presumptively considered incapable of negligence, but the presumption can be rebutted with a showing of facts that would indicate the child should be treated like an adult regarding duty of care. Finally, a child between the ages of fifteen to seventeen is considered presumptively capable of negligence, but that presumption can also be rebutted.

Again, there’s nothing here to even suggest that legal action might take place. However, if it hypothetically did, you would probably see a case where the presumption would be applied to children treating them as if they are incapable of committing negligence. It’s not an insurmountable presumption, but it would be very difficult to show that a child in this context should have an adult-like duty of care attached.

If any updates to this story become available, we will be sure to update the post.

[http://www.newsobserver.com/news/local/education/article19960401.html]

ARTSPLOSURE AERIAL DISPLAY INJURES BYSTANDER IN RALEIGH

WEIRD CASE: ARTSPLOSURE AERIAL DISPLAY INJURES BYSTANDER IN RALEIGH

Artsplosure is a very popular festival that occurs on Fayetteville Street each year. Citizens from Wake County and beyond often flock to downtown for fun events, but rarely do they consider the possibility of being injured by a flying acrobat. Unfortunately, this was the case at the most recent Artsplosure event.

An aerial acrobatic duo was performing maneuvers, anywhere from 16 to 30 feet in the air, when part of the structure collapsed. A Wake County man was injured as a result. His injuries did not appear to be life threatening, but he did appear to be in significant pain as he was taken to the hospital from the event.

Accidents like this always bring up interesting legal issues. Thankfully, Raleigh requires that all festival organizers, food vendors, and service providers carry insurance for events like these. However, the aerial group itself was not required to carry insurance because they weren’t using equipment that was available to the public, according to the News & Observer.

At an event like this, where tickets are not sold and people are generally free to come and go as the please, there would certainly be no assumption of risk or waiver of liability defense on the part of the aerial group or the company that oversees them. The most difficult part of this situation is likely going to be determining who to file a claim against, rather than whether the claim will succeed. The man appears to have suffered injuries and should have a solid negligence claim against someone.

We’ll keep an eye on it.

http://www.newsobserver.com/news/local/counties/wake-county/article21240363.html

ESTABLISHING DISABILITY

In another recent unpublished opinion out of the Court of Appeals, an issue arose as to whether a claimant adequately established a disability after a work-related injury. This case had quite a few contested issues, however the most informative is the court’s language regarding disability.
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In this case, the claimant suffered an injury when she was helping to lift an injured party off the floor at her place of employment. Specifically, she felt a tear in her back. The Industrial Commission awarded the claimant about a year of disability benefits, starting from her date of injury. However, both parties appealed. The claimant asserted that the Industrial Commission erred in only awarding a year of disability benefits. On the other hand, defendants argued that even the year of disability benefits was too much because the claimant had failed to establish she was disabled at all.

Determining the disability of a claimant is a multi-step process. First, disability is statutorily defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” N.C. Gen. Stat. § 97-2(9) (2013). Next, the plaintiff can prove the alleged disability in one of four ways:

(1) produce medical evidence that she is, physically or mentally, as a consequence of a work related injury, incapable of work in any employment;
(2) produce evidence that she is capable of some work, but after a reasonable effort on her part he has been unsuccessful in obtaining employment;
(3) produce evidence that she is capable of some work, but that it would be futile to seek other employment because of other conditions;
(4) produce evidence that she has obtained other employment at a wage less than that earned prior to the injury.

As you can see, the claimant has many avenues in which to prove a disability. In this case, the claimant looked for a job only one time after the accident. Moreover, she had experience in many different types of positions, including clerical positions. The Court also determined that the claimant had failed to promptly seek medical attention after her injury. Finally, medical testimony of multiple physicians who treated claimant failed to show that she was disabled after the accident.

Thus, because of these factors, along with an absence of evidence showing a disability after the incident, the Court of Appeals reversed the Industrial Commission’s award.

WHO QUALIFIES AS A “WIDOW”?

EASLEY V. TLC COS., COA15-62: WHO QUALIFIES AS A “WIDOW”?

A recent unpublished opinion out of the North Carolina Court of Appeals addresses a very rare issue: what facts must be present for someone to qualify as a widow?

At the outset, the definition of a “widow” under the North Carolina Worker’s Compensation Act is statutorily defined. Under the act, a widow must be “living with or dependent for support upon him at the time of his death; or living apart for a justifiable cause or by reason of his desertion at such time.” N.C. Gen. Stat. § 97-2(14)(2013).

With that definition in mind, let’s take a look at the facts. The couple married in January of 2003. In 2009, the couple separated. The wife (now claiming death benefits) claims that the husband forced her to leave. On the other hand, the husband’s son claims that they separated my mutual agreement. There are facts present that also suggest the wife had mental infirmities. Furthermore, there was no financial support exchanged between the parties after the separation took place.

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The Industrial Commission awarded all death benefits to the husband’s son because the wife did not meet the aforementioned definition of a widow.

The Court of Appeals affirmed. The Court held that nearly every fact agreed with the Industrial Commission’s findings. First, nothing in the facts suggests that the wife was depending on her husband for care or support. They were completely financially independent from each other. Second, there were no facts indicating foul play on the part of the deceased husband. He did not desert or abandon his wife. Furthermore, the Court held that even if he had deserted her, he would have likely done so based on a justifiable reason because of evidence showing various mental infirmities. Finally, the widow testified that she had not even spoken with her husband for nearly a year preceding his death.

All of these facts, under a totality of the circumstances analysis, led the Court of Appeals to affirm the Industrial Commission.

WOULD A VOLUNTEER FIREFIGHTER BE COVERED BY THE WORKER’S COMPENSATION ACT?

The answer is yes! Most of the time. The Worker’s Compensation Act is traditionally thought to cover injuries of conventional employees, those in an employer-employee arrangement. However, odd cases often pop up where employees get injured in volunteer scenarios. It is easy to imagine how a volunteer firefighter could get injured in that line of work. The Act does not allow these firefighters to go uncompensated for their injuries.

Under N.C. Gen. Stat. 97-2(5), volunteer firefighters are specially mentioned as compensable under the Act. The harder question is determining on what basis they will be compensated. The Act allows for volunteer firefighters to be compensated based upon the average weekly wage the person was earning in their principal employment on the date of the injury. Thus, if a volunteer firefighter’s principal job is on a construction site, he or she will be compensated based on that rate of pay.

For instance, in Brown v. Walnut Cove, 71 N.C.App. 409 (1984), a volunteer firefighter was injured on the job. He had recently been laid off from his principal job at Roadway Express. The Court held that his compensation should be calculated based upon his earnings at Roadway Express because that was his principal job and the one that he expected to eventually return.

Therefore, even if you believe that your status as a “volunteer” makes you unable to recover compensation from an employer, please consult an attorney. There are many exceptions throughout the Worker’s Compensation Act that take care of someone who may not be a conventional employee.

WHAT HAPPENS IF A MINOR IS INJURED ON THE JOB?

Minors are not excluded from compensation under the Worker’s Compensation Act. Tens of thousands of minors work in jobs throughout the state, from amusement parks to fast food restaurants.

In the event that a minor is injured while on the job, the compensation rate could be determined in two different ways. The compensation is first calculated by the average weekly wage paid to adult employees employed by the same employer at the time of the incident doing similar work as the minor was doing. Second, the minor’s compensation could be determined by a wage sufficient to yield the maximum weekly compensation benefit.

This is one area of the Worker’s Compensation Act where the policy is heavily in favor of the employee. While an adult would end up being compensated only for his or her actual wages when the injury occurred, minors are given the benefit of other avenues of calculating the wage. For instance, if a minor is being substantially underpaid in his position, and adults at the same employer are making much more, the minor’s compensation is going to mirror that of the adults.

Therefore, it’s critically important to contact an attorney if you are a minor, or if a minor in your family was involved in a workplace incident. While uncommon, minors do fall under the act and can be compensated for their injuries.

THE UNFORTUNATE SCENARIO: DEATH CAUSED BY WORK INJURY

Many people associate the Worker’s Compensation with back injuries, carpal tunnel, or occupational diseases. For good reason, those are the most common types of injuries under the Act. However, in some unfortunate scenarios, a work injury can either immediately cause death, or be a contributing factor of it later in the person’s life. The Act deals with this scenario in a few different ways.

The first requirement of N.C. Gen. Stat. 97-2(10) is that the death must be resulting from an injury to be compensable. If the injury is deemed to be compensable, the death must then occur within six years of the injury, or within two years of the final determination of disability, whichever is later. If those requirements are met, the employer must pay weekly payments of compensation from the last payment up to the last date before the employee’s death, in addition to burial expenses.

If the deceased employee does not have anyone to receive the compensation, the employer would only be liable for the burial expenses.

In Bason v. Kraft, 140 N.C.App. 124 (2000), this statutory scheme was put into practice. In Bason, the employee’s widow attempted to link the employee’s death from cardiac arrhythmia to his employment. However, the employer was able to show that the death was not due to a compensable work injury because the employee started his shift much later than normal, leading him to become much more fatigued throughout the day. Because of those extra facts, compensation for the employee’s death was denied.

While an unfortunate scenario, these situations do arise. It’s important to consult an attorney any time that you think an employer may be responsible for injury, or even death.

WEIRD CASES: WHAT IF MY EMPLOYER’S FOOD MAKES ME SICK?

Employers often have food catered for events, or even just for lunch. It might not come up often, but at least a few employees have probably thought about what happens if the food makes them sick. Well, it comes up more than you would think.

In Tscheiller v. National Weaving Co., 214 N.C. 449 (1938), the North Carolina Supreme Court established the general rule that would govern this scenario. In this case, the employer sold employees meal coupon books that they could then use to buy food and drink on the premises. That employee then used the coupon to buy food at the work site. Subsequently, the employee fell ill and was out of work for an extended period of time.

The Court held that where an employee’s illness is caused by defects in food that were given to the employee by the employer, any resulting injury would be treated as if it arose out of and in the course of employment, allowing for a Worker’s Compensation claim to be brought.

The implications of this today are pretty easy to see. If an employer brings in lunch for the employees, it is foreseeable that any illness could fall within the Worker’s Compensation Act. Also, if an employee is given access to an on-site cafeteria, it is also logical that any illness resulting from that meal may be compensable. It will still depend on the facts of each case. However, as odd as it seems, these situations do arise.

WHAT ABOUT HORSEPLAY?

It might seem odd, but employees often get hurt at work during playful or casual acts. For instance, imagine if an employee is working in a warehouse and a fellow employee jumps out from behind a crate and scares them. This causes the employee to slip and fall and hurt their back. Many claimants often believe that this won’t be compensable because it really had nothing to do with the employer. That would be inaccurate.

Under North Carolina’s Worker’s Compensation Act, an injury that occurs within the course and scope of employment is compensable. Even an injury that occurs as a result of the negligence of a co-worker would still qualify. As long as the employee that was injured was engaged in the employer’s business at the time, it is generally going to be covered by the Worker’s Compensation Act.

In McGraw v. Fieldcrest Mills, Inc., 84 N.C.App. 307 (1987), this exact situation occurred. The claimant walked up to a colleague, who was sitting on top of a box, and told him that he was going to jerk the box out from under him. The colleague then grabbed on to the claimant’s belt and jerked him, injuring his back. The Court held that the injury was covered by the Worker’s Compensation Act because it fell within the course and scope of his employment.

Thus, if you and an employee end up engaging in “horseplay” at work and one of you ends up getting hurt, the Worker’s Compensation Act may still enable you to obtain compensation.

WHAT DOES BILLED VS. PAID MEAN?

Nearly every attorney who works on personal injury matters has an opinion on a recent North Carolina law. The “Billed vs. Paid” law drastically changed the landscape of recovery for injured plaintiffs in North Carolina.

In practice, the law serves to limit the amount of exposure an insurance company will have on a personal injury claim. Previously, if a plaintiff was involved in a motor vehicle accident and suffered $10,000 in medical bills, those medical bills would be submitted to the insurance company at their face value, $10,000.

Today, the insurance company would only be liable to compensate a plaintiff for the amounts that were actually paid to satisfy the medical bill and any additional amount that would be necessary to satisfy the bill – for example, the co-pays.

Some would say that this was a necessary step to reduce insurance costs for all policyholders. However, the effects of the bill go further than the facts of any one case. When a plaintiff submits evidence to a jury regarding the amount of damages to be factored when calculating pain and suffering, that number will now be substantially lower. Regardless of who paid the bill, a jury only sees a lower number in terms of medical expenses, which will likely correlate to a lower number for pain and suffering.

Regardless of your position on the billed vs. paid law, it’s absolutely critical to know how this concept will affect recovery in your claim.

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