In workers’ compensation cases, part of what employees gave up in the “grand bargain” for no-fault benefits for workplace injuries and illnesses was the right to sue their employer for negligence. That means even if a worker would likely have received more compensation as a result of a personal injury negligence lawsuit, the employee can’t sue the company so long as the injury is covered under workers’ compensation laws. gavel7

Co-workers also are protected under this provision, and workers can’t sue them, even if their negligence caused or contributed to the accident.

But sometimes the question of who is “co-worker” – particularly on a construction site – can get tricky. That’s because there may be a number of different contractor and subcontractors, and some may under state law be extended protection under the exclusive remedy provision. It’s important to differentiate because when one can take action against a third party, recovery in addition to workers’ compensation may be obtained.

This was the issue in the recent case of TIC Energy & Chem, Inc. v. Martin, recently before the Texas Supreme Court. Of course, it’s important to point out that case law varies from state-to-state, but this case outlines situations we see crop up in North Carolina cases too.  Continue reading

A truck driver from North Carolina has died after a load-shifting injury that occurred as he was preparing to deliver cardboard materials to a warehouse. truckcargo

According to a sheriff’s office investigation, as reported by, the 63-year-old trucker exited his tractor-trailer, the worker got out of his tractor-trailer and opened the door. What he didn’t realize was that the load inside the truck had shifted. The material reportedly fell onto the trucker and crushed him.

He was rushed to a nearby emergency room, but workers were unable to resuscitate him. The husband of 32 years, father of eight children and grandfather to 13 grandchildren, was pronounced dead. In addition to the sheriff’s office, the Occupational Safety and Health Administration (OSHA) has launched an investigation. OSHA will be looking to see whether the trucking company and the worker followed safety laws and industry guidelines, or whether violations or lapses contributed to the accident. The company has not yet indicated whether it will also launch an internal investigation to determine whether its own policies were followed.  Continue reading

The issue of workers’ compensation death benefits is one that is important to review with an attorney because spouses and other dependents may be entitled to collect payments for certain expenses and for years after. sadness2

N.C.G.L. 97-38 allows for death benefits where a fatality results from a work injury or occupational disease. If death proximately results form a compensable injury or occupational disease within six years thereafter or within two years of a final determination of disability (whichever comes later), the employer has to pay death benefits equal to 66 2/3 percent of the average weekly wage of the decedent worker at the time of the accident, plus burial expenses.

But when there is any question about whether a firm should have to pay workers’ compensation death benefits, they will fight it because it’s usually costly. Families must fight back because often, the financial stability of the family is at stake.  Continue reading

Trench collapse accidents put workers at high risk of injury and death.trench

Just last year in Columbia, you may recall a worker died at a construction site of new student housing, where the 31-year-old was buried 6 feet below ground level when a cave-in occurred. The man had been an employee with the city. A similar incident occurred on Fort Bragg a year before, when a civilian contractor was buried under 18 feet of dirt after a trench collapse. It was determined a rock or large clump of dirt knocked the wall loose.

Such tragedies of course aren’t unique to North Carolina and South Carolina. In March, a construction worker in Northeast Ohio was killed in a trench cave-in that the Occupational Safety and Health Administration (OSHA) recently deemed “preventable.”

According to a recent article by The Cleveland Plain Dealer, OSHA imposed a nearly $45,000 fine against the worker’s employer, citing the company for one repeated and five serious safety violations that played a role in causing the worker’s death. Continue reading

An injured worker will receive workers’ compensation benefits after the North Carolina Court of Appeals affirmed the state industrial commissions decision to find credible the employee’s testimony that he hadn’t heard a supervisor give him a direct order not to touch a live wire near standing water. electriclightbulb

In Keaton v. ERMC III, the court noted that while it is true (per the 1982 decision in Hoyle v. Isenhour Brick & Tile Co.), that disobedience to a direct and specific order by a then-present supervisor will break the causal relation between employment and resulting injury, in this case, the plaintiff denied ever hearing the pertinent instruction from his boss. But because the full commission found credible the worker’s instruction that he didn’t hear this testimony, it stands to reason the worker could not disobey an order he never heard.

Therefore in this case, worker’s injuries are compensable.  Continue reading

Workers’ compensation in North Carolina is intended to cover certain expenses for all work-related injuries suffered by employees. However, if that employee has been drinking on the job, the employer can use this as a defense to argue the injury should not be covered. beerbottles

Per the 1984 North Carolina Appeals Court ruling in Anderson v. Century Data Sys., Inc., the employer has the burden to prove intoxication pursuant to statute. Being drunk on the job is an effective defense to workers’ compensation claims in North Carolina if:

  • Intoxication was not caused by alcohol/ substance provided by the employer or his supervisory agent;
  • He or she was under the influence of a controlled substance without a prescription;
  • He or she had willful intention to injure or kill himself/ herself or another.

Continue reading

Workers’ compensation claims in North Carolina are considered by the state industrial commission. A disagreement regarding a decision from a single commissioner will go before the full commission. A disagreement at that level can be appealed to the state appeals court and then, if necessary, to the state supreme court. gaveljan

But those appellate judges generally do not try to reweigh all the evidence. That’s the job of the commission, which has a great deal of discretion in deciding how much credibility to assign to which witnesses. The appeals courts are usually only concerned with whether the commission and/or lower courts abused discretion or misapplied the law. This same general schema is present in most state workers’ compensation systems.

In the recent case of IA Construction v. WCAB, the Pennsylvania Supreme Court was asked whether the appeals court was wrong to reverse the industrial commission on the basis that it had given improper weight to one of employer’s expert witnesses.  Continue reading

The National Safety Council (NSC) has released a list of its top 7 workplace hazards.worker

Nothing on the list is particularly earth-shattering, but it all requires review, considering how many workers continue to be injured in accidents that are entirely preventable.

The NSC’s consultants travel the country year-round to conduct workplace safety audits for companies whose leaders want to ensure they are in compliance with not only the industry standards, but the law.  Continue reading

Workers’ compensation law in North Carolina allows for compensation of occupational injuries and diseases that are either caused or aggravated by work-related conditions. That can in some cases include psychological injury or claims of workplace stress.sad

Often, these are cases wherein the physical injury results in a psychological injury, such as depression. However, emotional trauma or “pure stress” claims can be recognized as well.

Still, most employers will fight hard against these type of claims. Any hope of prevailing will require the help of an experienced workers’ compensation lawyer.  Continue reading

A young landscaping worker was reportedly killed his very first day on the job recently in New York when he became entangled in a tree grinding machine, also known as a wood-chipper. The 23-year-old worker was pronounced dead at the scene of the horrific accident, which occurred shortly after 1 p.m. on a recent Wednesday. woodchipper

The awful accident sounded eerily familiar to our North Carolina workers’ compensation lawyers. That’s because in December, a 19-year-old in this state was killed after falling into a wood chipper on his very first day on the job in Kings Mountain. In that case, the teen reportedly tried to kick a tree limb inside and his closed got snagged. His boss, so distressed at the accident, suffered a heart attack on site. He had reportedly been working side-by-side with experienced employees, and his boss insists he had been assigned a task that was safe for beginners.

There is new research that now shows work-related injuries are more common among novice employees.  Continue reading

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