Jeanne H Washburn
Have you been hurt while working through a temp agency?

Have you been hurt while working through a temp agency?

workerIn a recent North Carolina case, a worker was working through a temp agency with a company called BLW Sona. While working for the temp agency/BLW Sona, the worker was injured. The worker wanted to pursue workers compensation benefits against the temp agency and also wanted to pursue additional benefits against the company. The worker sued the company for negligence in state court. The company defended the case saying that Worker’s Compensation was the exclusive remedy. Also, they argued the claim belonged in the court of the Industrial Commission which handles workers compensation cases.

Generally, it is the rule that if you are injured while working, Worker’s Compensation is your only remedy from your employer. In other words, generally, you cannot sue your employer in civil court for negligence. There are exceptions to this rule. The claimant in this case was hoping an exception would apply. In this case, plaintiff was alleging that his employer was the temp agency and therefore he was able to sue the BLW Sona company in state court for negligence. The Court of Appeals held that:

If plaintiff was an employee of defendant, as well as of the temp agency, plaintiff may only seek compensation for his on-the-job injuries under the Workers’ Compensation Act.

So, in this case the worker was limited to the workers compensation benefits. However, these cases are complex and fact dependent. In this particular case, the Court analyzed a number of factors to reach this conclusion. If you have been injured on the job, call an attorney who can carefully evaluate your facts and determine your best course of action. You can find out what benefits you are entitled to only thorough analysis by an attorney familiar with your particular facts. You can call this office today for a free consultation.

What is a “disability” in the world of workers comp?

KELLY V. RAY OF LIGHT HOMES, COA14-1029: 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In another recent unpublished opinion out of the Court of Appeals, an issue arose as to whether a claimant adequately established a disability after a work-related injury.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.

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.

OVER A DOZEN INJURED WHEN DECK COLLAPSES IN EMERALD ISLE

In an event eerily similar to one that occurred only a few years ago, at least eighteen people were injured during the July 4th weekend when a deck collapsed at a beach house in Emerald Isle. This event is very similar to a deck collapse in Ocean Isle in 2009, which sent over twenty vacationers to the hospital. It appears that the family was attempting to take a photo on the deck when it collapsed.
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The legal implications of a tragic event like this have seen consistent evolution over the past fifty years. It used to be the majority rule that a vacation home owner was not liable for incidents such as these. The theory was that the renters are coming in to the homes for long vacations and thus have a duty to inspect the premises themselves for any potentially dangerous circumstances. Moreover, the rule also considered that vacation home owners rarely were physically present at the homes and might not be aware of the condition of the property.

However, eventually the insanity of this legal position was realized. Most states, North Carolina included, have adopted vacation home rental acts. These statutory schemes place an ordinary duty of reasonable care upon vacation home owners. It is always a good idea to inspect the premises when you arrive to determine if there are any obviously dangerous conditions. It is also important to keep in mind that using the property in a way that is not foreseeable could also create a danger that would not be compensable. It is unclear whether dozens of people on a deck taking a group picture would be unforeseeable, but the liability of a vacation home owner is not absolute.

Cases like these can be very fact intensive and require an acute awareness of the specific law. Lets hope that we don’t see another repeat of this accident for a long time.

COURT OF APPEALS UPHOLDS DENIAL OF COMPENSATION DUE TO LACK OF “ACCIDENT”

BATTLE V. MEADOWBROOK MEAT COMPANY, COA14-1059: COURT OF APPEALS UPHOLDS DENIAL OF COMPENSATION DUE TO LACK OF “ACCIDENT”

 

In a recent unpublished opinion, the Court of Appeals upheld the Full Commission’s denial of Worker’s Compensation to an employee because his injury was not caused by an “accident.” This case is a great example of why facts matter in Worker’s Compensation cases. It also does a great job of highlighting why there is rarely a straightforward and clear-cut Worker’s Compensation case.

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At first glance, the facts of this case would seem rather ordinary for a successful claim. However, there is an underlying distinction that is important for claimants and their attorneys to be aware of.

In this case, the employee-claimant was a truck driver for Meadowbrook Meat Company. His primary duties consisted of unloading the trucks and placing the product in the restaurants of the customers. While unloading the materials on a truck at a Golden Corral, the employee felt a “pull” in his arm. The injury occurred when employee-claimant was trying to move product off of a pallet that was stuck on debris in the truck. As the employee-claimant and a colleague moved the product from the stuck pallet to an empty pallet, he was forced to lay on his stomach to reach some boxes on the far side of the stuck pallet. When pulling the third of four boxes, he felt the injury. Employee-claimant finished his work for the day and notified his employer of the injury at the end of the day and the next morning. The injury eventually resulted in shoulder surgery.

At hearing, the primary contention by employer-defendant was that the injury did not occur as a result of an “accident” in the course and scope of employment. The Deputy Commissioner agreed. Subsequently, the Full Commission affirmed.

On appeal, the Court addressed the narrow issue of whether an “accident” was the cause of employee-claimant’s injury. The Court of Appeals agreed with the Full Commission and affirmed due to lack of accident.

The Court used the North Carolina Supreme Court’s interpretation of an accident: “. . . an unlooked for and untoward event which is not expected or designed by the person who suffers the injury.” While much more expansive than the previous sentence, the definition generally comes down to whether the injury was caused by performing an act that is normal and a part of the employee’s duties.

Thus, on appeal, employee-claimant’s primary contention was that he was not performing a normal act in the course and scope of his employment because he was on work restrictions at the time, due to a previous knee injury.

The Court, looking at the findings below, agreed with the Full Commission that employee-claimants injury did not occur as the result of an accident. Relevant factors to the decision were that: (1) the employee was, at times, capable of pulling the pallets off of the truck and placing them in the restaurant; (2) the employee-claimant testified that his regular job duties sometimes included leaning on to pallets to pull the product. Therefore, the Court of Appeals affirmed.

COURT OF APPEALS REVERSES WORKER’S COMPENSATION AWARD TO VETERAN MECHANIC

Worker’s Compensation cases come in all shapes and sizes. However, this recent case out of the North Carolina Court of Appeals is noteworthy due to the age of the claimant. In Fields v. H&E Equipment Services, No. COA14-1094 (2015), the Court reversed the Industrial Commission’s compensation award to a 65-year-old mechanic.

The claimant’s injury occurred when he lifted a heavy battery out of a car. He had previous pain in his back before this episode and was on lifting restrictions. The lifting of the battery was in excess of his lifting restrictions. Shortly after the onset of pain while lifting the battery, the claimant had severe pain in his back and was forced to visit the emergency room. He was diagnosed with multiple severe back ailments that would limit his ability to work as a mechanic. The Industrial Commission awarded the Claimant his temporary total disability payments starting at the date of injury and continuing onward.

On appeal, the Court looked to one central question: Whether the Claimant failed to meet his burden to show that he was disabled as a result of a work injury. The defendant-employer argued that the Claimant failed to show that he’s out of work only because of the work injury. At the heart of this case was a conclusion of law by the Full Commission that Claimant had shown it would be futile to attempt to find work with the physical restrictions placed upon him by his physician.

Here, the Court of Appeals went through the process of determining whether the Claimant had put forth the required evidence to show that seeking employment would be futile. The Court determined that the plaintiff did not make an adequate showing. First, the claimant failed to present any evidence that he attempted to gain employment. Second, he failed to present any evidence that he is incapable of working in any capacity. Finally, he failed to offer any evidence from a vocational expert that his condition would make it futile to seek any other employment opportunities. Therefore, the Court reversed the Industrial Commission’s compensation award.

COURT OF APPEALS AFFIRMS THE EXCLUSIVE JURISDICTION OF INDUSTRIAL COMMISSION

On February, 17, 2015, the North Carolina Court of Appeals heard Bowden v. Young, COA14-819, regarding whether the Industrial Commission has exclusive jurisdiction to handle an intentional infliction of emotional distress and bad faith claim. The general rule is that the Industrial Commission is the only venue that can hear claims regarding a workplace incident. However, the plaintiffs in this case were attempting to create a distinction in the law for intentional torts.

The case arose when a fast food employee was assaulted during an attempted armed robbery. The employee filed a Worker’s Compensation claim due to his injuries. However, unrelated to the workplace injury, the employee alleged that the insurance company had participated in a pattern of improper conduct while dealing with his claim. This improper conduct included communicating with doctors without permission, treating him badly over the phone, and denying his requests for medical treatment. These allegations of improper conduct formed the basis for the plaintiff’s claim of bad faith and intentional infliction of emotional distress.

The issue in this case then became whether the Industrial Commission has jurisdiction to hear the claims of bad faith and intentional infliction of emotional distress. On one hand, the claims are separate and apart from the Worker’s Compensation claim. Thus, the compelling reasons that exist to allow the Industrial Commission to hear all Worker’s Compensation claims may not exist in this context. On the other hand, these claims arose out of his original work injury claim.

The Court of Appeals ultimately held that the intentional tort claims fall under the exclusive jurisdiction of the Industrial Commission. The Court cited to precedent indicating that all claims concerning the processing and handling of a claim are within the exclusive jurisdiction of the Commission. This general rule does not depend upon whether the conduct was intentional or negligent.

Therefore, the Industrial Commission has exclusive jurisdiction to hear the Worker’s Compensation claim as well as any claims that arise from the handling of the claim.

WORKER’S COMPENSATION CLAIM FOR LUNG CANCER

If you have been diagnosed with a disease and you think is related to your employment, you need to consult with an attorney. Many people think of workers compensation claims arising out of a traditional accident. However, in the case of an “occupational disease”, those cases can also be compensable under the right circumstances. However, they are difficult cases and you need an experienced workers comp lawyer to help you through the process.

For example, in 2011, a veteran Hospira employee (not represented by this firm) filed a Worker’s Compensation claim subsequent to his lung cancer diagnosis. The facility where the employee worked had a constant level of radiation present but also had an irradiator on site designed to limit the exposure. The employee’s main argument was that he was exposed to a low-level radiation beam, which caused the lung cancer.

Facilities, like the one where employee claims he suffered the condition, are required to have the radiation levels checked regularly. From 1993 to 2008 there were no large increases in the facility’s radiation levels. The Commission concluded that the employee’s “beam theory” was scientifically implausible.

After extensive testimony by leading scientists and physicists in the field, the Commission concluded that the employee had failed to establish a compensable occupational disease as a result of radiation exposure. Furthermore, the employee continued to earn wages equal or greater than his pre-injury wages. Thus, the employee was not entitled compensation.

This case does a good job of highlighting how difficult it is to establish an unconventional occupational disease compensation claim. An occupational disease claim typically requires the employee to show that the disease resulted from the employment. As this case shows, that can be much more difficult than an accident where an injury immediately occurs. The fact that the employee was exposed to low levels of radiation in the course of normal life also complicated this case. There tend to be low levels of radiation in the community, in food, and in water. To sustain a claim for an occupational disease, an employee typically has to show that their last exposure to the hazard was in their employment. With low levels of radiation present in many circumstances, that would be very difficult.

I.C. No. 892460

WILSON COUNTY BRIDGESTONE EMPLOYEE SUFFERS SHOCK

A 2013 Worker’s Compensation case involving a Bridgestone employee in Wilson County highlights the extensive process and analysis that goes into finding that an injury is not compensable. The case arose when an employee had to clear a jam in a machine that he was working on. While doing so, the employee’s elbow made contact with an exposed wire causing a shock. The employee immediately reported the incident but he did not show any bruising, redness, burn marks, or trouble breathing. The employee continued to complain of pain in the area.

Multiple doctors were involved in the process of determining the injury in this case. One doctor performed a nerve study but could not find any damage to the nerves in the elbow. Eventually, the employee was diagnosed with carpal tunnel syndrome. None of the doctors involved in the case were willing to say with certainty that the injury was caused by the electric shock the employee received at work.

Thus, the Industrial Commission was in a position to have to determine if the employee should be awarded compensation for the injury. The Commission determined that the electric shock was a compensable injury within the course and scope of the employment. However, the Commission concluded that the employee had not shown that the electric shock caused his injuries by a preponderance of the evidence. Relevant factors included that the employee continues to work, earn his pre-injury wages, and meet all performance requirements. Thus, the Commission held that there was no causation between the accident and injury. Therefore, no compensation was awarded.

This case does a good job highlighting the extensive analysis necessary to determine if a claim is not compensable. This would be very difficult process to go through without representation. Contact me today to help you through this process.

I.C. No. X69494

COURT OF APPEALS UPHOLDS CLAIMANT’S AWARD BASED ON STATUTORY DEFINITION OF EMPLOYER

A recent case at the North Carolina Court of Appeals presents a common issue in Worker’s Compensation cases. Atiapo v. Goree Logistics, No. COA14-977 (2015), raised the question was who is a truck driver’s employer.

While it seems like a mere technicality, the statutory definition of what constitutes an employer is very important in a Worker’s Compensation case and it made the difference in the outcome in Atiapo v. Goree Logistics. In the case at hand, Atiapo was injured driving a tractor trailer for a “middle man” company called Goree Logistics. After the injury, Atiapo discovered Goree Logistics, did not have worker comp insurance. At the time of the accident a company called Owen Thomas had hired out Goree Logisitcs to deliver their load. After examining the employment relationship, the Industrial Commission held that Owen Thomas was a “principal contractor” under the North Carolina statutes. Thus, Owen Thomas was liable for disability payments, medical expenses, and the costs of the hearing because Goree did not carry insurance.

On appeal, the court undertook a single issue: whether the Commission correctly found and held that Owen Thomas was a principal contractor?

The court held that because Owen Thomas had discretion in selecting a carrier, and significantly controlled the process, that Owen Thomas was correctly determined to be a principal contractor under N.C. Gen. Stat. § 97-19.1.

This case represents a key distinction in the law. Even though your employer may not carry Worker’s Compensation insurance, it doesn’t mean that no one will be liable on the claim. These cases are very complicated and turn on the individual facts of each case. Nevertheless, one should have his claim evaluated by an experienced workers compensation attorney.

GOVERNOR MCCRORY ADDRESSES WORKER’S COMPENSATION COST IN RECENT STATE OF THE STATE ADDRESS

“They have cost taxpayers tens of thousands of dollars.” Those are the words of Governor Pat McCrory at the recent State of the State address in Raleigh. Governor McCrory was referring to what he perceived as wasted taxpayer dollars related to worker’s compensation claims in the state last year. The Governor went further when he claimed that 40% of Worker’s Compensation costs in the state are related to “abuse or outright fraud.” The Governor then went on to announce a state-wide initiative to responsibly settle outstanding Worker’s Compensation claims that have been ongoing for five years or more.

The Governor’s comments are a mixed bag. No information was given within his speech, or by any of his representatives after the speech, giving any basis for the 40% number that he mentioned. However, it is a positive sign that the Governor is leading the initiative to clear out claims that have been around for over half a decade. These prolonged disputes harm both parties. In the past, workers employed through the State of North Carolina have faced hurdles that workers in the private sector have not because of the state refused resolve on-going cases.

Often injured workers are accused of fraud or abuse when none exists. Some cynical plaintiffs even believe that such suggestions are pretexts to unfairly justify denying workers their rightful compensation. However, in any individual case, if credible evidence exists that the employee is participating in fraudulent or abusive practices, it is catastrophic for the case. Under certain conditions the conduct can even be criminal. Workers compensation is a minefield for the unrepresented plaintiff. If you have any question at all about whether you are getting your rightful compensation, you should contact and attorney immediately.

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