Articles Posted in North Carolina Industrial Commission

A North Carolina employer has been ordered to pay workers’ compensation benefits to a worker whose shoulder injury was caused by a work accident. Not only that, but also the North Carolina Court of Appeals ordered the company to pay a 10 percent penalty for failing to file its request to terminate the plaintiff’s disability compensation with the industrial commission after her unsuccessful trial return to the job. tires

The plaintiff worked for the defendant employer as a tire builder. While pulling at a tire, she felt her right shoulder “pop.” She was examined by a physician, who determined she suffered a “SLAP” injury, which is an injury that affects the labrum, or the ring of cartilage surrounding the socket of the shoulder joint.

She filed a claim for benefits, and a deputy commissioner awarded the plaintiff benefits for the injury to her shoulder and found her entitled to payment of future necessary medical compensation related to her injury.  That was in 2007. Three years later, the plaintiff suffered another injury at work to that same shoulder. Both sides agreed this was an exacerbation injury, meaning it was a continuance of the previous injury.

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When it comes to workers’ compensation claims in North Carolina, injured workers seeking temporary total disability need to show they are incapable of returning to work in the pre-injury job because the job requirements exceed the injury-related work restrictions, and the plaintiff has made reasonable but unsuccessful efforts to obtain suitable employment. tires

The requirement goes back to the term “disability” as it is understood in the North Carolina Workers’ Compensation Act, which is the incapacity to earn wages because of the work-related injury. Thus, for the state industrial commission to find an injured worker should receive workers’ compensation for loss of capacity to earn wages, it first has to find the worker was not capable after the injury of earning the same money as before in the same job, was not capable after the injury of earning the same money as before in a different job, and lacked the capacity to earn these wages due to the work injury.

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In a workers’ compensation case that involves third-party negligence, the employee can seek damages from that third-party. This is usually a good idea, if that option is available, because the amount of compensable damages in a personal injury lawsuit are typically over and above what one might receive in a workers’ compensation claim. car accident

However, one must note that whatever damages you collect from that third party, your employer may retain a lien on the portion it already paid. So for example, your employer covers $50,000 in medical expenses through workers’ compensation and you later win an injury lawsuit against the third-party for $150,000 – which includes $50,000 for medical expenses. Your employer would be entitled to collect its $50,000, and you would only be entitled to collect $100,000.

In a recent case out of the North Carolina Court of Appeals, the court ruled that a defendant ordered to pay an employer directly from an injury judgment was entitled to have the matter reviewed by the superior court.  Continue reading

The North Carolina workers’ compensation law entitles employees injured on the job to receive reasonable and necessary medical expenses for their injuries. This includes, per the General Assembly’s amendment to the Workers’ Compensation Act in 2011, attendant care services, which may be provided by a family member or other loved one. In many cases, the person has to give up their job (often a much better-paying one), but it is usually no less of a “job.” hands

Attendant care is a type of hands-on assistance with a person’s functional needs, including activities of daily living. It could mean helping with meals or shopping, keeping house, bathing, managing finances, and helping a person take their medications. Often, it’s the same type of service that may be offered in an assisted living center, but not quite so intensive and from the person’s private residence.

In a recent case before the North Carolina Court of Appeals, the justices were asked to consider if the North Carolina Industrial Commission was wrong to grant attendant services benefits to the mother of a worker who suffered an on-the-job traumatic brain injury years earlier.

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A tire company operating in North Carolina will have to pay a fine and correct a safety violation cited by the Occupational Safety and Health Administration (OSHA), after the North Carolina Court of Appeals rejected the argument that OSHA wrongly interpreted the statute. tire

The industrial safety statute in question is found in 29 CFR 1910.23 and N.C. Gen. Stat. 95-129(1), and requires that every open-sided floor or platform that is four feet or more above an adjacent floor or ground level shall be guarded by a standard railing on all sides, except where there is an entrance to a ramp or stairway or a fixed ladder. For purposes of the law, a platform is defined as a working space that is elevated above the surrounding floor or ground, such as a balcony for the operation of machinery or equipment.

In a recent case, the question raised by defendant following a worker injury was whether it was compliant with the aforementioned statute. Defendant argued that it was compliant because the location from which the worker fell was not a “platform.” OSHA disagreed, and the appellate court sided with OSHA.  Continue reading

Employees who are injured on the job in North Carolina are entitled to receive workers’ compensation benefits. But that doesn’t mean employers are thrilled to pay out those costs. In turn, we see many workers’ compensation claims intersect with employment lawsuits because employers respond to a filing with retaliation, which is illegal. work at my office

These kinds of cases are complicated because North Carolina operates under the at-will employment doctrine, which generally means that most employees can be terminated from their job at any time and for any reason. However, there are some statutory and common law exceptions. One of the common law exceptions to at-will employment is the public policy exception. This holds that an employer can’t fire a worker for a reason that runs contrary to public policy. Workers’ compensation benefits are one branch of public policy because state law supports an employee’s right to collect workers’ compensation benefits. Therefore, an employer who retaliates against a worker for invoking that right – i.e., filing a workers’ compensation claim – would be acting contrary to public policy.

There is also a state statute, N.C.G.S. 95-240, better known as the Retaliatory Employment Discrimination Act, that stipulates a worker can’t be fired or discriminated against in retaliation for certain activities performed in good faith. That includes filing a claim, initiating an investigation or providing information or testimony with regard to workers’ compensation.  Continue reading

As of January 1, employers across the country are required to submit worker injury and illness information electronically to the U.S. Occupational Safety & Health Administration, which then disseminates the information for public view. But a number of employers and business interest groups want to see this new rule scrapped. worker

A lawsuit filed on January 4 in Oklahoma Federal Court by the U.S. Chamber of Commerce, the National Association of Homebuilders, and other plaintiffs alleges the database exceeds the record-keeping authority held by OSHA. Furthermore, the plaintiffs allege their First Amendment rights are being violated by requiring businesses to turn over too much information that should be private.

In Nat’l Ass’n of Home Builders v. Perez, the plaintiffs argue there are “significant concerns” with the requirement that employers offer up detailed injury and illness summaries for public consumption. Specifically, the complaint argues that OSHA doesn’t have the authority to impose the requirements, which expose businesses to “significant reputational harm.” Furthermore, the complaint asserts that this harm is effected without evidence that doing so helps to demonstrably slash workplace injuries and illnesses.

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A nursing home food worker suffered an injury in a slip-and-fall accident at work. Although she was initially granted workers’ compensation benefits for medical treatment and time off work, she was later able to return to work without restrictions. But when the nursing home was bought by another company, it switched food service contractors – and the plaintiff couldn’t get a job with the new company due to her criminal background. kitchen

Following the North Carolina Industrial Commission’s denial of workers’ compensation benefits for disability and the treatment of certain medical conditions, the plaintiff in Reece v. Sodexo, Inc. appealed to the North Carolina Court of Appeals. But the appellate panel found that competent medical evidence in the record supported the findings of fact made by the commission.

The evidence weighed by the commission generally showed that the plaintiff started working for the food service employer in 2006. She worked there for seven years before the work accident. Her job title required her to cook and serve food, wash dishes, and help with other kitchen duties. Her job required her to sometimes lift up to 50 pounds, and she often had to remove or replace heavy items on shelves or above her head.

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It looks like the North Carolina Industrial Commission will have a host of improvements to tackle in 2017.worker

The state initiated an audit of the agency, and determined that there have been improvements in the agency’s oversight of North Carolina workers’ compensation claims. However, it is still failing to meet identification and investigative targets, the audit concluded.

This report was a follow-up of the commission’s performance following a previous audit three years ago that concluded the NCIC was not acting on data that was complete, reliable and accurate to proactively single out companies that did not have workers’ compensation insurance, as required by law. This has been an ongoing issue in South Carolina, where a series of articles by The News & Observer of Raleigh revealed there were at least 30,000 companies in this state as of 2012 that were operating without the proper workers’ compensation insurance coverage. Auditors indicated they believed that number might be as high as 52,000, which could mean there are as many as 156,000 employees in North Carolina working for non-compliant companies. Continue reading

When a worker suffers an on-the-job injury, he or she may be unable to work for a period of time. Once a worker has obtained maximum medical improvement, he or she may still suffer ongoing disabilities and permanent impairment. At that point, the employer may offer an alternative form of employment. It won’t be exactly the same position. It won’t necessarily pay the same. Even if a worker is unhappy with the offer, he or she should consult with a workers’ compensation lawyer before turning it down because doing so could in some cases jeopardize one’s benefits.hardware store

In the recent case of McKnight v. Lowe’s, the question was whether plaintiff unjustifiably turned down suitable employment offered by defendant. The North Carolina Industrial Commission ruled that she did. However, the North Carolina Court of Appeals held that the Commission failed to make sufficient findings of fact on this issue, and thus vacated the opinion and remanded for further review.

According to court records, plaintiff was 31-years-old and had been working at a Lowe’s in Raleigh for eight years when she suffered a work-related injury in November 2009. She had a high school diploma and worked first as a cashier for about 2.5 years, then as a specialist in the home decor department, and later as a manager-in-training in hardware and tools before being promoted to manager of paint and home decor in 2005. It was in this capacity that she suffered a work-related injury to her neck and shoulder.  Continue reading

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