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

The award of workers’ compensation benefits in North Carolina isn’t the end of the story. In many cases, employers or insurance companies will challenge the continuity of these benefits. knees

Such was the case in Hale v. Barnes Distribution, recently weighed by the North Carolina Court of Appeals, wherein the plaintiff appealed the commission’s finding that his employer properly ceased payments of his workers’ compensation benefits.

According to court records, the court’s hands were somewhat tied due to a mediated agreement the employee made in obtaining his benefits in the first place.

The mediated settlement agreement was that employer/ insurer would cover his workers’ compensation claim for total disability benefits – unless and until his primary care physician released him at least for light duty. Continue reading

The North Carolina Court of Appeal recently affirmed the amount of a workers’ compensation subrogation lien on a judgment obtained by an injured plaintiff against a red light runner. drive7

The issue raised in Dion v. Batten is one that is not unusual for those who are injured while driving in the course and scope of employment. That’s because workers’ compensation benefits are typically awarded far in advance of any personal injury damage award by third-party, at-fault drivers. But plaintiffs are forbidden from collecting double recovery for things like medical expenses or lost wages. So if a workers’ compensation insurance carrier has already provided coverage for those elements and then a subsequent injury lawsuit results in a compensation award for those same damages, the workers’ compensation insurer is then entitled to subrogation – or reimbursement for – the compensation it previously paid.

Plaintiff worked as a servicing agent for a car dealership in Wilmington in March 2009 when the vehicle he was driving for work was struck by a vehicle driven by a defendant who failed to stop at a red light. Because the crash occurred during the course and scope of plaintiff’s employment with the dealership, plaintiff was entitled to – and filed a claim for – workers’ compensation benefits.  Continue reading

North Carolina has had a serious issue with employers who fail to carry proper workers’ compensation insurance to protect their employees in the event of an on-the-job injury. In fact, this last year, the North Carolina Industrial Commission charged some 100 employers with misdemeanors for failure to carry proper insurance. The agency has also collected more than $ 1 million in civil fines.


Yet problems persist. So what are workers to do?

One option is to sue your employer for personal injury. When employers refuse to secure workers’ compensation insurance as required by law, they are no longer legally insulated from such lawsuits, which can result in substantial payouts to the employee far in excess of what they might have gotten from the workers’ compensation claim. That’s because workers’ compensation doesn’t allow for damages paid for pain and suffering, while personal injury litigation does. Plus, you could seek full reimbursement of wages, rather than the two-thirds allowable under workers’ compensation law. However, that’s typically a slower process and you would still have to prove negligence.  Continue reading

A North Carolina man injured at work in both 2010 and again in 2014 while working at two different jobs is entitled to collect workers’ compensation from both, the North Carolina Court of Appeals has just ruled. worker1

In Harris v. Southern Commercial Glass, the appellate panel affirmed the North Carolina Industrial Commission, which had ruled the worker’s second employer was liable to pay both workers’ compensation and disability benefits to the worker.

All sides had previously agreed plaintiff was seriously hurt at work in 2010, necessitating back injury and ultimately resulting in a maximum medical improvement rating of 15 percent disability. That’s the rating he walked into his second job with. However, he still managed to work full-time – sometimes as much as 70 hours weekly – and lift up to 75 pounds. Then in April 2014, all sides agree he experienced back pain after bending slightly while performing job duties. What the parties sharply disagreed about in this case was the legal significance of that second occurrence. Continue reading

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