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  • Full Commission Round Up – June 2014

    Posted on June 25, 2014 by in NC Workers' Compensation
     
     

    In an effort to help our clients, and potential clients, stay current and knowledgeable about what's going on in workers' compensation law, from time to time we will provide easy to understand summaries of recent workers' compensation related opinions from the NC Industrial Commission, NC Court of Appeals, and NC Supreme Court.

    Below we have included several summaries of recent NC Industrial Commission opinions. This is the first of many installments in this post series. If you find these helpful, we hope you'll comment, follow us on Facebook, Twitter, or LinkedIn, or give us call. Many thanks to the Bowman Law interns for their help in creating these summaries!

     

     

    Sutton v. Atlantic Seafood Company

    Date: June 3, 2014

    Issues:
    1. Whether Plaintiff is disabled?
    2. Whether Plaintiff is entitled to benefits?

    Facts:
    Plaintiff began working for Defendant in November 2008 as a truck driver. In February 2011, Plaintiff sustained an injury at work, when his foot was run over by a forklift. Plaintiff went to a surgeon two days later, and the physician declared that Plaintiff was restricted from work until April 2011. In April 2011, physical therapy was recommended, and the therapy was funded by Defendant. The physician limited Plaintiff’s work abilities, but Defendant did not comply.

    In May 2011, Defendant was ordered to pay Plaintiff $718.33 a week in disability compensation benefits from the date of injury to the present. In September 2012, Plaintiff accelerated job search efforts, but did not gain new employment. In October 2012, Plaintiff was released to do medium-duty work, but did not believe that he could do his original job due to his injury. The Full Commission found this to be reasonable and justified.

    Conclusions of Law:
    Plaintiff sustained a compensable injury by accident that arose out of and in the course of employment. Plaintiff is responsible for proving disability, and once Plaintiff does so, it becomes the Defendant’s burden to disprove it. The Full Commission concludes that due to Plaintiff’s injury, age, vocational history, etc., finding new employment is futile. Plaintiff made reasonable efforts to find employment, and Defendant is unable to prove that Plaintiff was capable of finding employment.

    Plaintiff is entitled to temporary total disability benefits from February 2011 through present and continuing until otherwise ordered by the Industrial Commission. The Full Commission concludes that vocational rehabilitation services are suitable to shorten Plaintiff’s disability period. Plaintiff is entitled to have all medical expenses paid by Defendant. Defendant is not entitled to credit for Plaintiff’s compensation. Defendant has reasonable grounds for defending the claim; therefore, they are not liable for Plaintiff’s court costs.

    Resolution:
    Defendant must continue to pay Plaintiff a weekly compensation of $718.33 until otherwise ordered by the Industrial Commission. Defendant must pay all of Plaintiff’s medical expenses. Defendant shall provide Plaintiff with vocational rehabilitation services, and Plaintiff must cooperate. Plaintiff’s claim for attorney’s fees is denied. Defendant’s claim for a credit is denied. Plaintiff’s counsel shall receive every fourth check due to Plaintiff. Defendant shall pay the $220 Full Commission hearing costs.

    Williams v. Best Cartage, INC

    Date: May 30, 2014

    Issues:
    1. Whether Plaintiff sustained a compensable injury by accident on October 4, 2011?
    2. If so, to what compensation, if any, is Plaintiff entitled?

    Facts:
    Plaintiff, a semi-truck driver for Best Cartage, INC., was injured while exiting his. Plaintiff twisted his left knee which caused him to fall to the right, twisting his right knee as well. This aggravated a pre-existing condition, which resulted in Plaintiff having to undergo a total left knee replacement. Regarding Plaintiff’s left knee, the doctor confirmed that slight trauma can cause knee damage; although, there was no evidence that the loosening of the hardware in his right knee, which was from a former replacement, was connected to the recent fall.

    The doctor gave Plaintiff light duty work restrictions, no heavy lifting, little walking. Defendant offered Plaintiff an office job which met the doctor’s restrictions; however, Plaintiff failed to report to work multiple times. Eventually taking an early retirement, Plaintiff became Medicare eligible, which covered the medical care Plaintiff has had since the fall. A few months later, Plaintiff began a new job with another trucking company.

    Conclusions of Law:
    Plaintiff has a compensable injury by accident arising out of and in the course of his employment because exacerbations of pre-existing conditions are compensable. However since Plaintiff unjustifiably declined employment that met his work restrictions, Plaintiff is, therefore, not entitled to compensation.

    Resolution:
    Plaintiff is not entitled to compensation; however, Defendant is required to pay for all medical treatment Plaintiff has undergone to his left knee and will reimburse Medicare. Defendant is also required to pay the hearing costs.

    de la Vega v. Family Foods, INC.

    Date: May 30, 2014

    Issues:
    1. Whether Plaintiff sustained a compensable injury by accident on February 16, 2012?

    2. If so, to what compensation, if any, is Plaintiff entitled?

    Facts:
    Plaintiff walked into a piece of equipment and stated that the accident caused him to lose consciousness and injure his neck, back, and right hip. Plaintiff wrote the accident down in a shift log book, but did not seek medical attention, despite being aware of the employer’s accident reporting procedures.

    The following day, a fellow employee reported that Plaintiff smelled of alcohol the night of the accident. Security camera footage captured the accident, and the footage did not support Plaintiff’s account of the events. Other evidence, including medical records and reports, confirmed that Plaintiff did not lose consciousness.

    The day following the incident, Plaintiff was contacted by his superior to proceed to Urgent Care. While there Plaintiff was administered a blood alcohol test, which showed a level of .078 at 10:15 AM. Plaintiff testified it was from beers he drank after his shift, but then later testified that the test was wrong, stating he was at Urgent Care earlier than 10:15 AM and that he only tested a blood alcohol content of .04.

    Medical providers told Plaintiff to go back to work; however, he did not. Plaintiff testified that he was “not able to do a lot of physical activity whatsoever,” including standing for long periods of time, not being able to open and close doors, and needing a cane to walk. Plaintiff’s testimony contradicted surveillance evidence provided by Defendant.

    Plaintiff’s doctor testified that Plaintiff only came to him with a neck sprain, and did not follow up. He also testified that Plaintiff had a history of long standing back pain and neck pain and stated that many circumstances in Plaintiff’s medical history could have caused Plaintiff’s spinal symptoms. 



    Conclusions of Law:
    In workers' compensation cases, the plaintiff must prove that they sustained an injury by accident arising out of and in the course of employment. Plaintiff had contradictory testimony as well as security footage and did not meet the requirements of providing reliable evidence. There was no evidence of Plaintiff’s back, right hip, or head injuries, only minimal evidence supporting Plaintiff’s neck claim. Plaintiff also failed to prove that the injuries resulted from the accident.

    Resolution:
    Plaintiff’s claim is denied, and he is obliged to pay $500 to Defendant for absurd prosecution of claim. The matter is being referred to North Carolina Industrial Commission’s Insurance Compliance and Fraud Investigation Section for possible action.



    Moore v. Mohawk

    Date: May 30, 2014

    Issues:
    1. Plaintiff filed a Motion to Compel Defendant to Provide Vocational Rehabilitation Services. The Special Deputy Commissioner granted the motion, and Defendant appealed. The appropriateness of that decision is now under review.
    2. Defendant was order to provide Plaintiff with access to vocational rehabilitation services due to her disability. Defendant is appealing that decision.
    3. Defendant is appealing the Special Deputy Commissioner’s decision to classify Plaintiff as disabled.

    Facts:
    Plaintiff began working at Defendant’s plant in 1973. In 1995, she was diagnosed with bilateral carpal tunnel syndrome, and in August 1996, as a result of her condition, the Plaintiff was deemed temporarily totally disabled. In 1997, a physician concluded that the injury was related to her employment duties, and it was not until the following year that the physician recommended that she return to work with restrictions.

    At that time, Defendant refused to provide Plaintiff with a job that met those restrictions, and Plaintiff was unable to find another job. Defendant did provide Plaintiff with vocational rehabilitation services in 1999, but attempted to suspend or terminate the Plaintiff’s compensation in 2000 due to Plaintiff’s purported lack of cooperation. In 2013, Defendant reinstated rehabilitation services.

    Conclusions of Law:
    Plaintiff is entitled to receive, and Defendant is required to provide, job search assistance because her disability arose from her employment. Plaintiff is required to cooperate with these vocational rehabilitation services. Plaintiff was entitled to continue receiving disability until she returned to work in 1999. Defendant bore the burden of proving that Plaintiff was employable, and Defendant did not meet this burden. Plaintiff is therefore deemed disabled; however, since Plaintiff did not cooperate with the vocational rehabilitation assistance provided, she is no longer entitled to compensation.

    Resolution:
    Defendant’s request to cancel Plaintiff’s rehabilitation services is denied. Defendant must continue providing these services, and Plaintiff is required to cooperate. Plaintiff’s request to reinstate temporary total disability benefits is denied. Defendant must pay for further medical evaluation of Plaintiff’s capabilities, as well as explore and pay for additional medical relief. The Defendant is responsible for hearing costs.

    Magana v. Builders Firstsource, Inc., Liberty Mutual Insurance Company, JT/SG Enterprises, Inc. d.b.a Solutions Staffing, Zurich American Insurance Company (Gallagher Bassett Services Inc.)

    Date: May 30, 2014

    Issues:
    1. Defendant is seeking a determination as to whether the injury arose out of and in the course of employment.
    2. Defendant is seeking a determination as to what benefits Plaintiff is entitled to, and which party is responsible for those benefits.

    Facts:
    Plaintiff began working for Defendants on approximately August 15, 2012. Plaintiff was hired by a staffing agency, Staffing Solutions, and Plaintiff was assigned to work for Builders Firstsource. The agreement between both companies began in 2007. This agreement stated that Solutions Staffings was responsible for worker’s compensation insurance.

    Plaintiff began working in the table saw department on August 29th. On August 30th, Plaintiff’s right hand slipped into the blade, causing the severe, near-amputation of three fingers.

    Plaintiff underwent surgery, which was followed by physical therapy. Therapy continued through February 11, 2013. Plaintiff's physician placed him on restricted working conditions. On September 27, 2012, Solutions Staffing denied Plaintiff’s claim , stating that Plaintiff was not an employee at the time of injury. On November 7, 2012, Builders Firstsource denied responsibility for Plaintiff’s injury for the same reason. Plaintiff was unsuccessful in finding employment or returning to school due to the injury.

    Conclusions of Law:
    Plaintiff has the burden of proving compensability, and Plaintiff met this burden by demonstrating that he was injured by an accident arising out of and in the course of his employment. Plaintiff is considered an employee of both companies. Per contract, Solutions Staffing has accepted financial responsibility for any workers' compensation liability that may arise in relationship to this employee.

    Resolution:
    Solutions Staffing is required to pay Plaintiff $345.45 per week from August 30, 2012 until May 9, 2013 in a lump sum. Either party may request a hearing to determine what compensation is appropriate for the time period after May 9, 2013. Solutions Staffing will pay Plaintiff’s medical expenses and the $220 hearing costs.

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