Gregory S. Horner, Author at Workers' Compensation Defense

January 27, 2020 North Carolina / Temporary Total Disability (TTD)

North Carolina Court of Appeals Retains Pre-Reform Definition of Suitable Employment

Suitable employment is an issue frequently litigated in workers’ compensation claims in North Carolina. Typically, a job is offered and the claimant refuses the job on the basis that it is allegedly unsuitable. For decades, this issue has troubled employers because claimants could, with seeming impunity, refuse legitimate work and continue to collect temporary total disability.

Prior to 2011, North Carolina case law dictated that post-maximum medical improvement (MMI) employment must be (1) available in the local labor market, (2) reasonably attainable and offers opportunity …

Garrett v. Goodyear Tire & Rubber Co.

In a recent case, Garrett v. Goodyear Tire & Rubber Co. (Garrett II), the North Carolina Court of Appeals affirmed the Industrial Commission’s determination that a claimant was not disabled due to her failure to engage in a reasonable job search. This case was before the North Carolina Court of Appeals a second time.

In its first hearing on the matter, the Industrial Commission concluded the claimant’s neck injury was compensable and awarded her total temporary disability compensation (TTD) for a 14-month period. Both parties …

May 7, 2018 North Carolina

North Carolina Court of Appeals Holds Medications Not Approved by FDA can Constitute Medical Compensation

The Court of Appeals of North Carolina recently affirmed an Industrial Commission decision that use of non-FDA approved “compound creams” prescribed by an authorized treating physician was compensable medical treatment to be provided by the employer.

In Davis v. Craven County ABC Board, the plaintiff suffered compensable complex regional pain syndrome. He was prescribed a non-FDA approved compound cream and testified that it relieved some of his symptoms. The defendants refused to honor the prescription for several reasons, arguing that, among other things, the medication …

March 15, 2018 North Carolina

Getting Your Recorded Statement into Evidence Under Rule 608

Most adjusters handling North Carolina workers’ compensation matters take recorded statements as part of their claims investigation. For defense counsel, this is one of the most important documents used to defend denied claims. This post is a reminder of two technical requirements that must be met with regard to all recorded statements. If these requirements are not met, the statement can be excluded from evidence by the Industrial Commission. This can be catastrophic to the defense of the claim.

Recorded statements are governed by North …

August 30, 2017 Average Weekly Wages / North Carolina

North Carolina Court of Appeals Holds Calculations of Average Weekly Wage Must Be “Fair and Just” to Both Employer and Employee

The North Carolina Court of Appeals ruled that when calculating the average weekly wage of an employee, the calculation must be “fair and just” to both the employer and the employee.

In Ball v. Bayada Home Health Care, the plaintiff alleged to have suffered injuries to her left hand, bilateral knees, and right hip while employed as a certified nursing assistant (CNA) in February 2011. Her accident took place on the first day of work with a new patient — right after she had …

June 23, 2017 North Carolina

Post-Wilkes Decision Tips for Handling Workers’ Compensation Claims

We recently wrote about the impact of the Wilkes v. City of Greenville decision. In this ruling, the North Carolina Supreme Court significantly expanded the “Parsons presumption,” which posits a relationship between an original work-related injury and additional treatments required. It is possible that the North Carolina General Assembly will overturn the decision — though there is no guarantee. If the General Assembly does not act, then we can expect to see a significant increase in claims for new body parts and conditions following …

May 22, 2017 North Carolina

Parsons Presumption Still Applicable to Same Body Part

The North Carolina Court of Appeals has handed down a ruling that clarifies and potentially expands the “Parsons presumption,” a North Carolina precedent that posits a relationship between an original work-related injury and additional treatments required. This new ruling, in the case of Bell v. Goodyear, establishes that when a court accepts an injured body part as compensable, subsequent injury to the same body part is subject to the Parsons presumption, even if the exact location of the subsequent injury is different from the …

May 9, 2017 North Carolina / Post-Accident Drug Testing

Post-Accident Drug Testing: Part 7 — North Carolina

After every accident involving potential human error, North Carolina employers should perform a drug test. The test must enable the defense attorney to prove not only the presence of an intoxicating substance, but the concentration. Most simple urine drug screens do not provide that information.

The North Carolina Workers’ Compensation Act makes “intoxication” by illegal drugs, or legal drugs not taken as prescribed, a defense to a claim for an injury by accident. But “intoxication” is harder to prove than many realize. The defense attorney …

March 30, 2017 North Carolina

If the “Last Act” to Trigger Employment Occurred Outside N.C., The Claim May Not Be Compensable

A recent decision by the Court of Appeals of North Carolina highlights, in the context of workers’ compensation claims, the importance of where the “last act” necessary to form an employment contract occurred — particularly for companies that draw workers from other states. The good news for employers is: If that step was taken outside North Carolina, the employer may have a jurisdictional defense.

In Holmes v. Associated Pipe Line Contractors, Inc., _ S.E.2d _, 7 February 2017, the plaintiff was a resident of …