Some work-related injuries are obvious: There is bruising, a laceration, bleeding or a fracture clearly visible on an X-ray. Other injuries may not be easily seen or verified. That does not necessarily mean one cannot receive workers’ compensation for them, but they are tougher to prove. Prior injuries too can prove challenging when trying to establish that the ailment in question is causally related to work.hospitalhall

The recent case of Yarborough v. Duke University before the North Carolina Court of Appeals involves a claim filed by a hospital cafeteria worker who claimed to have suffered a shoulder injury after being struck by a swinging door while returning from delivering patient meals.

The issue in this case was not whether plaintiff was acting in the course and scope of her employment at the time of her alleged injury. Rather, defendant employer disputed that an accident had occurred at all, and the full commission concluded she hadn’t suffered an injury by accident. This case came down to a he-said-she-said matter of credibility. Continue reading

Missclassification of workers as independent contractors rather than employees is a major problem in North Carolina. State officials have been heavily focused on it in recent years, with the governor issuing Executive Order No. 83 in December 2015, which created the Employee Classification Section of the North Carolina Industrial Commission. hammer

Although the government and the courts are certainly more aware of the problem, it continues to occur. That’s why even a worker who is denied workers’ compensation benefits on the grounds they are an independent contractor – as opposed to an employee – should consider first talking to a lawyer before giving up. Injured workers may actually be employees, no matter how the company officially classified their status. A determination of whether a worker was an employee or an independent contractor may be based on numerous factors subject to interpretation.

The recent North Carolina Court of Appeals case of Bentley v. Piner Construction was an appeal from a worker arguing the Industrial Commission made a mistake when it ruled he was an independent contractor rather than an employee for purposes of workers’ compensation. Worker argued the mistake was in basing an opinion and award on a previous opinion and order issued by a deputy commissioner who wasn’t at the hearing and never heard the evidence. The appellate court agreed and ordered a new hearing.  Continue reading

A building boom in South Carolina has prompted a construction worker shortage that is reported to be affecting us here much worse than in other states. That’s according to a recent survey conducted by the Associated General Contractors of America. The word from companies in South Carolina is that they are having a much more difficult time finding construction work help than their counterparts in other areas. Respondents of the survey revealed they intend to keep hiring more workers, even though many here are already pulling higher wages and more overtime. constructionzonesign

Four out of five contractors in South Carolina – or 83 percent – indicated they are struggling to find craft construction workers. That’s compared to 69 percent nationally. Further, 7 out of 10 contractors here have vowed to hire more people in the coming year, though a only a small percentage believe it’s going to get easier to do so.

On the one hand, this is good news for workers. It means there are jobs available, and workers may have more leeway in demanding higher wages and safer working conditions. However, it could also lead to problems because companies may in their haste to fill positions hire people who perhaps aren’t qualified or fail to provide the proper training for each job. Industry insiders are concerned because, particularly when it comes to skilled labor, it’s important to have the right person for the right job. Unfortunately, many companies are going to find themselves hiring workers who are less experienced than would be ideal for certain projects.  Continue reading

Federal regulators have slapped a Wayne County sawmill with a fine in excess of $200,000, accusing the owners of intentionally and repeatedly violating numerous federal workplace safety laws.sawdust

The U.S. Occupational Safety and Health Administration (OSHA) alleges that Wayne Lumber & Mulch Inc. has engaged violations that include:

  • 3 willful
  • 9 repeat
  • 12 serious
  • 3 other-than-serious

For a total of 27 violations, federal authorities are proposing a fine that tops $214,600. This recommendation comes just two years after OSHA cited the same company for 40 violations back in March 2014. At that time, OSHA initially recommended a fine of $82,000, but ultimately agreed to a settlement for exactly half that, $41,000. Now, however, OSHA officials say it’s clear the company didn’t take those earlier violations seriously.  Continue reading

A nationwide campaign led by some of the country’s biggest companies to allow employers to “opt-out” of workers’ compensation insurance was dealt a major blow recently after the Oklahoma Supreme Court ruled these plans are unconstitutional. This was after the legislature three years ago granted employers in that state the ability to “opt-out” of the state’s workers’ compensation system and create their own plans.workboots

This led to a situation where the companies were allowed to set the terms dictating things like:

  • Which injuries would be covered;
  • Which doctors injured workers were allowed to see;
  • How workers would be compensated;
  • How disputes for workers’ compensation benefits would be handled.

As you can imagine, this was a system clearly designed to give employers the upper hand in these proceedings. It’s no wonder the measure was backed fervently by the gas industry, the oil industry and major retailers like Lowe’s, Hobby Lobby and Walmart.  Continue reading

In North Carolina workers’ compensation cases, employers have the ability to assert that liability should be apportioned between or among multiple employers or carriers when more than one is believed to have contributed to a workers’ condition. This is an assertion that would apply to cases where a worker has some prior or pre-existing injury or condition, though the applicability of apportionment is a determination that is made by the state workers’ compensation board (which here is the North Carolina Industrial Commission). workerexcavator

Generally, where a prior condition wasn’t the result of some compensable injury and/or the worker had been able to perform his or her job just fine despite the pre-existing condition, apportionment typically can’t be asserted.

In the recent North Carolina Court of Appeals case of  employer appealed the workers’ compensation benefits awarded to plaintiff on the grounds that it should not be solely responsible for plaintiff’s condition, and that previous employers should share some portion of the liability. The appellate court rejected this assertion, siding with the earlier decision by the NC Industrial Commission that this employer was solely liable for worker’s injuries.  Continue reading

Recently, the North Carolina Industrial Commission and the U.S. Department of Labor signed a “Memorandum of Understanding” that aims to curb employee misclassification by making it easier for both entities to investigate it. Employee misclassification is a well-documented problem here in North Carolina, and involves employers who classify their workers as independent contractors, rather than employees. The goal, usually, is to avoid paying their fair share of payroll taxes – and workers’ compensation benefits in the event of a worker injury. workeronstaging

In some cases, companies maintain federal contracts while brazenly flouting labor laws. In North Carolina, misclassification and other abuses cost the state $467 million a year, The News & Observer reported, just in lost tax revenue from the construction industry. In many cases, taxpayers and injured workers are picking up the tab that should be paid by workers’ compensation benefits.

Now, this latest agreement will break down the long-standing barriers between the NC Industrial Commission and federal labor officials. Last year, Gov. Pat McCrory assigned the commission with the task of coordinating efforts among state agencies to find and crackdown on employers who were breaking the law and wrongly misclassifying workers and denying them benefits to which they were entitled.  Continue reading

A man in Nebraska recently won his case before the state supreme court there for permanent total disability benefits under his employer’s workers’ compensation program after enduring a forklift injury. forklift1

The incident occurred four years ago, when plaintiff was operating a forklift in the course and scope of employment with defendant in Nichols v. Fairway Bldg. Prods. when the hydraulic lift dock that supported the forklift collapsed. The forklift and the worker suddenly dropped about 8 inches. Although it didn’t seem extremely serious at first, plaintiff sought medical attention that day, complaining of piercing pain in his mid-back and lower back. An x-ray didn’t reveal any abnormalities, so he was prescribed pain medication and sent home. However, the injury worsened, extending to his legs and causing him to sometimes lose control of his urinary functions. However, he was embroiled in a child custody dispute and feared any lapse in his work history would cause him to lose custody of his children.

The pain continued for months. He was seen by a specialist and tried a host of non-surgical treatments without success. He then underwent back surgery, which helped slightly. There was more physical therapy and then two more surgeries. Within two years, he’d reached maximum medical improvement – with significant permanent physical restrictions. He couldn’t sit more than 20 minutes, he couldn’t lift more than 10 pounds, he couldn’t be expected to stand more than 20 minutes and he couldn’t lift anything below the knee or above the shoulder level.  Continue reading

Workers who are injured on-the-job have the benefit of a no-fault system of compensation, wherein they don’t have to prove the company made a mistake in order to receive help with medical bills and lost wages. The trade-off of this is that workers cannot then turn around and sue their employer for a personal injury in civil court. forklift1

This schema is fairly straightforward, but the waters can be muddied when other companies or individuals are involved. There might be reasonable grounds for third-party litigation, but it really depends on the circumstances.

In the recent case of Black v. Dixie Consumer Products, the question was whether a worker was allowed to pursue personal injury compensation from a third-party company, not his employer. The U.S. Court of Appeals for the Sixth Circuit weighed in. Continue reading

A North Carolina company is embroiled in a controversy in Michigan following a severe worker injury at a recycling plant in Ann Arbor that revealed a host of safety problems at the site, prompting the city to end its contract with the firm. Now, the injured worker, who alleges he told the manager of serious safety concerns hours before the accident, is fighting a contested workers’ compensation claim, while the company is suing the city for wrongful termination of the contract. recycle

MLive.com reports the recycling plant worker, a 47-year-old maintenance technician, said when he was brought on as an employee in February, management gave him a long list of things that needed to be fixed. Right away, he said, he noted the work environment seemed chaotic. Workers were allowed to smoke inside, which he worried created a fire hazard. Equipment was old and in need of repair. He also said there weren’t enough workers to safely do the job, and the ones who were employed there – mostly temporary workers hired through a staffing agency – weren’t properly trained or experienced.

The day of his injury, the worker says he told the plant manager, “Somebody’s going to get hurt, and it’s not going to be me.” But it was him. Hours later, a gear box that he and another worker were fixing came crashing down on his arm, tearing into the tendons and muscle in his forearm. His shoulder suffered injury too when he pulled hard to get his hand out from underneath the 500-pound machine. Six months later, he still can’t lift anything. He remains on pain medication and doctors tell him his arm will probably never be the same.  Continue reading

Contact Information