North Carolina Court of Appeals Archives - 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 …

December 16, 2019 Disability Benefits / North Carolina

A Quick Guide on How to Navigate Claims That Occur Outside of North Carolina

Whether the North Carolina Industrial Commission has jurisdiction to adjudicate a workers’ compensation claim can be critical to a claim’s defense. A scenario where this issue commonly arises is when an employee is injured outside of the state of North Carolina, yet chooses to file a North Carolina claim.

N.C. Gen. Stat. Section 97-36 is the statute governing the North Carolina Industrial Commission’s jurisdiction over claims arising from accidents occurring outside of the state. Of particular importance, the North Carolina Court of Appeals has held …

December 9, 2019 Disability Benefits / North Carolina

Using Labor Market Surveys to Rebut Disability

An issue that is frequently encountered in workers’ compensation claims is whether a claimant can prove disability — i.e., whether the claimant can show that they are incapable of earning their pre-injury wages at the same or any other employment as a result of their work-related injury.

One tool that employers can use to rebut evidence of disability is a labor market survey prepared by a vocational rehabilitation expert. To enhance their evidentiary value, labor market surveys should be specifically tailored to the claimant’s individual …

November 4, 2019 Disability Benefits / North Carolina / Temporary Total Disability (TTD)

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 …

September 16, 2019 Medical Expenses / North Carolina

North Carolina Court of Appeals Affirms Industrial Commission’s Denial of Bellwether Cases

The North Carolina Court of Appeals recently affirmed the Industrial Commission’s denial of claims, collectively known as the bellwether cases, that constituted a small portion of 144 consolidated workers’ compensation claims.

Specifically, Walter Hinson, decedent-employee, worked for Continental Tire the Americas at its factory in Charlotte, North Carolina. The decedent’s estate alleged that his employment exposed him to levels of harmful airborne asbestos sufficient to cause asbestos-related disease. In addition to the decedent’s estate, approximately 143 other employees and/or estates similarly alleged occupational exposure to …

March 7, 2019 General / North Carolina

Forum Section Critical in Carolina UIM Benefits Case

A recently published North Carolina Court of Appeals workers’ compensation case highlights an issue for consideration when there is an opportunity to select a forum for workers’ compensation benefits involving a claim where UIM benefits are a potential recovery source for subrogation.

In Walker v. K&W Cafeterias, Robert Walker (decedent) was killed in a motor vehicle accident while driving a truck for his employer, K&W Cafeterias, Inc. K&W is a North Carolina corporation, but the accident occurred in South Carolina and decedent was a resident …

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 …

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 …