Silva v. Lowes – Penalties, Fees and Other Awards in Workers’ Compensation Claims

In making a North Carolina workers’ compensation claim, the primary issue is typically securing benefits. Beyond that, there may be additional compensation for late payments, attorney’s fees and other expenses. These expenses can add up to a significant sum, so it’s certainly worth exploring. However, there needs to be sufficient proof that the additional compensation is warranted. aislephoto.jpg

In the recent case of Silva v. Lowes, plaintiff fought a years-long battle for continued benefits after he was terminated from the job for unrelated reasons. The employer argued that because he was fired for reasons unrelated to his disability, workers’ compensation benefits, including temporary total disability and coverage of medical expenses, should be revoked.

Plaintiff ultimately prevailed and, after several defendant appeals, received a lump sum payment for about $221,000, or $460 a week from the time of his termination to when the final decision was issued. However, the commission denied plaintiff’s request for compensation on certain other fronts. Specifically, he had requested a 10 percent late payment penalty for defendant’s alleged untimely payment after it lost the final appeal, plus reimbursement for attorney’s fees and certain other expenses.

Ultimately, the North Carolina Court of Appeals rejected these requests, but much of it had to do with failure to present enough evidence.

The first issue weighed was the 10 percent penalty for late payment. N.C. Gen. Stat. 97-18(e) states that if compensation isn’t paid within 14 days of becoming due, a late penalty is imposed. The statute further states that following an appeal, a payment has to be made within 10 days of a judgment. The issue here was a dispute regarding the due date. Plaintiff contended it was after the appellate court’s judgment in June 2009. Defendants argued the clock didn’t start ticking until the time to petition the state supreme court for discretionary review had expired, which was 15 days after the appellate court’s decision. The appellate court sided with defendant on this matter.

Then there was the issue of compensation for certain expenses that included educational costs and accountant’s fees. Plaintiff had racked up nearly $600 in expenses for attending a course at a local community college which, he stated, was to help him improve his chances of obtaining gainful employment despite his injuries. It is possible to be compensated under state law for such expenses, but there needs to be evidence those services were recommended by a medical or rehabilitation or vocational professional as part of the individualized rehabilitation plan. No one made such a recommendation here, as plaintiff merely took the initiative on his own. Secondly, with regard to accounting fees, plaintiff stated he consulted with an accountant to help him develop his “life care plan” of future expenditures. Expenses under the same description were deemed compensable in the 1999 case of Timmons v. North Carolina Dept. of Transp. However, the appellate court differentiated the present case from Timmons by pointing out, here again, a rehabilitative service professional had “strongly recommended” such action by a worker rendered quadriplegic. No such professional recommendation had been made here in this case.

Finally, on the matter of attorneys’ fees, extended costs would be covered where the commission finds defendant lacks reasonable grounds to bring an appeal, and plaintiff is forced to pay for an attorney in those matters. However in this case, court found reasonable grounds existed, and thus plaintiff was not entitled to attorney’s fees for representation in those matters.

Although the outcome was disappointing for this plaintiff, it’s worth noting that such costs can be recouped. Your workers’ compensation attorney should be able to provide further insight on the strength of such claims relative to your case.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:
Silva v. Lowes, Feb. 3, 2015, North Carolina Court of Appeals

More Blog Entries
State ex rel. Hildebrand v. Wingate Transport, Inc. – Use Caution in Quitting Your Job After Work Injury, Feb. 16, 2015, Charlotte Work Injury Lawyer Blog

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