When a worker is injured in the course and scope of employment, but also due to the negligence of a non-employer third party, that worker may be entitled to pursue both workers’ compensation and personal injury compensation. However, these kinds of claims must be handled carefully, and preferably by a law firm that can handle both.
That’s because the employer/ workers’ compensation insurance company may be entitled to impose a lien on benefits obtained in the personal injury lawsuit. That doesn’t necessarily mean plaintiff would receive nothing for the additional trouble of pursuing a personal injury case, but it must be above board, or else risk forfeiture of the right to collect workers’ compensation insurance.
That’s what happened in the recent case of Easter-Rozelle v. City of Charlotte, recently before the North Carolina Court of Appeals.
Plaintiff was an employee of the City of Charlotte in June 2009 when he was injured while lifting a manhole cover in order to obtain access to a sewer line. The injury was to his right shoulder and neck. Employer filed a Form 60 with the Industrial Commission in which it admitted liability and granted compensability for the injury.
Plaintiff received treatment for his injuries and was restricted from work duty until the end of the month. At that time, the employer instructed employee to obtain a work restriction note from his doctor and provide it to his employer. Plaintiff contacted the doctor and was instructed to come pick up the note at the office. While plaintiff was on his way to pick up the note, he was involved in a serious car accident and suffered a traumatic brain injury. Plaintiff’s wife contacted his employer and informed him of the crash and that he could not come to work.
Plaintiff also spoke with his supervisor in twice during the three days following the crash. He too told his boss he’d been injured on his way to pick up the note.
Plaintiff underwent surgery for his shoulder and was assigned a 10 percent permanent partial disability for that injury, with his doctor assigning permanent physical restrictions.
Meanwhile, a neurologist diagnosed him with concussion and post-concussion syndrome, and referred him to a psychologist for memory loss, cognitive deficits and post-traumatic stress disorder relating to his head injury.
Later, plaintiff obtained a settlement on his personal injury claim against the at-fault driver in the crash for $45,500. After medical expenses, costs and attorneys fees, plaintiff received net proceeds of $16,000. At the time of this, plaintiff was represented by a different law firm for his workers’ compensation claim. The settlement was disbursed without reimbursement to defendants for its workers’ compensation lien or a superior court order that reduced or eliminated the lien or the Industrial Commission’s allowance of distribution of funds. The attorney in his personal injury case asserted plaintiff wasn’t at work at the time of the accident and the health insurance carrier had to pay those medical bills.
During a mediation session on the workers’ compensation claim – with his other attorney – his lawyer found out for the first time the crash occurred while plaintiff was on his way to pick up the note for work restriction. He then indicated that meant his injuries were covered under workers’ compensation. He abruptly stopped the medication process and filed a form requesting a hearing on the matter. Defendants responded plaintiff couldn’t collect workers’ compensation on that claim because the settlement proceeds had already been disbursed without Industrial Commission approval.
A deputy commissioner found plaintiff had no right to recover additional compensation from defendant for his crash when the third party settlement funds had already been disbursed without preservation of defendant’s lien. He was thus barred from asserting workers’ compensation benefits.
Plaintiff appealed, and the commission reversed, concluding plaintiff had given his employer enough notice of the car accident and his injuries.
The North Carolina Court of Appeals has now just reversed.
The current statute does allow both employer and employee the right to take action against a negligent third party in a work injury case. However, following that settlement, either the employee or employer can apply to the superior court judge for a ruling on the issue of subrogation. Defendant has a mandatory right to reimbursement, and courts have determined employers have a right to be involved in and consent to the settlement process.
Although employee argues he settled for an amount that was “grossly inadequate” compared to his total lost wages and medical bills, the appeals court found that doesn’t matter. What matters is the employer wasn’t afforded the chance to participate in the process.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
Easter-Rozelle v. City of Charlotte, Dec. 1, 2015, North Carolina Court of Appeals
More Blog Entries:
Newlon v. Teck American, Inc. – Workers’ Compensation Settlement Agreements, Nov. 27, 2015, Charlotte Workers’ Compensation Lawyer Blog