Workers’ Compensation Appellate Cases

Saunders V. ADP TotalSource FI XI, Inc., 372 N.C. 29, 822 S.E.2d 857 (2019), Reversing 249 N.C. App. 361, 791 S.E.2d 466 (2016)

The plaintiff/client, a bartender, sustained two back injuries while lifting at work. Following his injuries, he developed CRPS and foot drop, which increased his risk of falling. Litigation of this matter occurred before the North Carolina Industrial Commission at the deputy commissioner level and was appealed to the Full Commission. The case was further appealed to the North Carolina Court of Appeals and the Supreme Court of North Carolina regarding the issue of fees for compensation of attendant care services. The Supreme Court decided this case in favor of the plaintiff, and the workers’ compensation insurance carrier later settled.

Benefits obtained for the plaintiff included:

• Payment to the plaintiff’s spouse for past in-home assistance provided to the plaintiff (also known as “attendant care”)
• Home health care through an outside home health care agency
• Payment for interior and exterior home modifications for increased handicap accessibility
• Various pieces of assistive durable medical equipment (e.g., wheelchair, wheelchair lift for the plaintiff’s vehicle, electric scooter, walker, orthotic shoes, raised toilet seat, and mattress)

Mehaffey V. Burger King, 367 N.C. 120, 749 S.E.2d 252 (2012), Reversing 217 N.C. App. 720, 718 S.E.2d 720 (2011)

The plaintiff/client, a restaurant manager, injured his left knee at work. He underwent surgery, had a bad result, and developed reflex sympathetic dystrophy (RSD). The plaintiff’s wife had to stop working to provide attendant care for her husband. Litigation for this matter occurred before the North Carolina Industrial Commission, both before a deputy commissioner and the Full Commission; the North Carolina Court of Appeals; and the Supreme Court of North Carolina.

Benefits obtained through successful litigation included the following for the plaintiff:

• Past and future payment to the plaintiff’s wife for the care she had been providing to the plaintiff (“attendant care”)
• Home health care through an outside agency to relieve the plaintiff’s wife
• Home renovations to allow for greater handicap accessibility
• Various pieces of assistive durable medical equipment (e.g. power wheelchair, backup manual wheelchair, mobility scooter, replacement walker, and a hospital bed for the plaintiff’s home) that the plaintiff required

Skoff V. U.S. Airways, Inc., 234 N.C. App. 329, 762 S.E.2d 2 (2014)

The plaintiff/client worked as a flight attendant. After working on a flight, she disembarked at Charlotte-Douglas International Airport. She boarded a crowded airport employee shuttle bus to travel from the terminal to the employee parking lot. The plaintiff only had space to stand on the crowded bus. While in transit, the bus driver braked suddenly, causing the plaintiff to fall forward. A piece of luggage hit her, and another passenger on the bus fell on her. She injured her neck and shoulder and required fusion surgery.

The issue of compensability was argued before a deputy commissioner of the North Carolina Industrial Commission, this decision was appealed to the Full Commission, and subsequently to the North Carolina Court of Appeals. The Court of Appeals later issued a decision in favor of the plaintiff. The Court determined that injuries to airline employees on the Charlotte Douglas International Airport’s employee buses occur “in the course” of employment and are covered under workers’ compensation.

Thomas V. Contract Core Drilling & Sawing, 209 N.C. App. 198, 703 S.E.2d 862 (2011)

The plaintiff/client worked as a concrete driller. While at work, he “misstepped” and injured his left knee. This case was heard by the North Carolina Industrial Commission, first by a deputy commissioner and then the Full Commission. The decision of the Full Commission was then appealed to the North Carolina Court of Appeals. We prevailed at all levels.

Benefits obtained for the plaintiff through litigation included the following:

• Past-due wage loss compensation
• Payment of the plaintiff’s medical bills.

The Court of Appeals’ decision looked at whether the Industrial Commission’s finding, which did not resolve all of the disputed issues, was a “final” order subject to appellate review or an “interlocutory” order yet ripe for appellate adjudication.

Starr V. Gaston Country Board Of Education, 191 N.C App. 301, 663 S.E.2d 322 (2008)

The plaintiff/client, a groundskeeper, had an accident at work and injured his lower back. One year later, he had a second accident at work with the same employer and injured his neck and right shoulder. Despite being employed by the same employer on both dates of accident, the insurance company on the risk on the respective dates of accident changed. The employer was self-insured on the date of the first accident. However, it obtained workers’ compensation insurance coverage through an insurance company on the date of the second accident.

The plaintiff filed two separate workers’ compensation claims, and the respective insurance companies accepted each claim. However, the insurance companies disputed which one was responsible for the payment of the plaintiff’s wage loss benefits. This case was litigated by the North Carolina Industrial Commission before a deputy commissioner and before the Full Commission. The Full Commission decision was appealed to the North Carolina Court of Appeals. We prevailed at all levels.

The Court of Appeals determined that the plaintiff was out of work due to his first injury and that the second insurance company was entitled to reimbursement of all wage loss benefits paid. The Court of Appeals also clarified that equitable defenses are not available in workers’ compensation cases when there is an adequate remedy at law, even if that remedy is unfavorable.

McCarver v. Hunter Motors, Inc., 2008 N.C. App. LEXIS 53 (2008)

The plaintiff/client injured his right knee at work. The workers’ compensation insurance company accepted the compensability of his claim. Following surgery to his knee, the plaintiff attempted to return to work with his employer under work restrictions assigned by his doctor. However, his employer refused to accommodate his work restrictions and returned the plaintiff to his normal pre-injury position and duties. The plaintiff was eventually taken out of work by his doctor. His employer terminated him for not timely notifying his employer of absences.

This case was heard by the North Carolina Industrial Commission at the deputy commissioner level and by the Full Commission. It was appealed to and the North Carolina Court of Appeals. The Court of Appeals issued a decision in the plaintiff’s favor, upholding the Commission’s determination that a job exceeding the plaintiff’s work restrictions was not “suitable.” As a result of this decision, we recovered wage loss benefits for the plaintiff over a longer period.

Montgomery v. Toastmaster, Inc., 174 N.C. App. 320, 620 S.E.2d 685 (2005)

The plaintiff/client worked for her employer for over 30 years. Her job duties required strenuous, repetitive use of both hands. After some time, she began experiencing carpal tunnel syndrome symptoms for which she underwent surgery to both wrists. The plaintiff attempted to return to work, but her carpal tunnel symptoms immediately returned. She was assigned permanent restrictions and retired shortly after that, despite her desire to continue working.

This case examined whether the light-duty jobs the plaintiff’s employer assigned to the plaintiff constituted “suitable employment” under the law at that time.

Konrady v. U.S. Airways, Inc., 165 N.C. App. 620, 599 S.E.2d 593 (2004)

The plaintiff/client worked as a flight attendant. The airline arranged for the flight crew to stay at a local hotel during an overnight layover. The plaintiff injured her knee when she “misstepped” while descending the steps of the local hotel’s courtesy van.

The workers’ compensation insurance company denied the claim based on the following arguments: (1) the plaintiff did not sustain an injury “by accident,” (2) even if an accident occurred, the plaintiff’s injuries were not causally related to that accident, and (3) the plaintiff’s medical bills and disability should be apportioned between her work-related accident and a previous injury to the same knee.

After being heard at the deputy level and being appealed to the Full Commission of the North Carolina Industrial Commission the decision was appealed to the North Carolina Court of Appeals. The plaintiff won on appeal.

Benefits obtained for plaintiff included the following:

• Wage loss benefits for all periods missed from work due to her injuries
• Full payment of past medical bills related to her work injuries without apportionment
• Full payment for ongoing medical treatment without apportionment

Logan v. Roger’s Concrete Co., 2002 N.C. App. LEXIS 1785 (2002)

Mark Sumwalt and Rick Anderson litigated this case together before forming Sumwalt Anderson Law Firm. The case was heard by the North Carolina Industrial Commission at the deputy commissioner level and before the Full Commission. The Full Commission decision was then appealed to the North Carolina Court of Appeals Mark and Rick prevailed on plaintiff’s behalf at all levels.

Our client, the plaintiff worked as a concrete finisher. Plaintiff was injured when a Bobcat machine operated by a co-worker pinned him against a brick wall, causing numerous bone fractures and a ruptured bladder. He ultimately required a below-the-knee amputation. The workers’ compensation insurance carrier accepted the claim.

Still, the insurance carrier disputed the amount of wage loss benefits our client was entitled to weekly (also known as “temporary total disability benefits”). The insurance carrier argued for a calculation method that would significantly reduce the amount our client received per week based on the theory that our client was an intermittent employee.

We were successful in litigating this case at all levels. Ultimately, the Court of Appeals determined that our client was not an intermittent employee and, , we were able to secure a higher average weekly wage figure and compensation rate for our client.

Osmond v. Carolina Concrete Specialties, 151 N.C. App. 541, 568 S.E.2d 204 (2002)

The plaintiff/client was injured in a car accident while riding as a passenger in his supervisor’s vehicle. They were driving to the supervisor’s home to retrieve a dump truck. The plaintiff was thrown from the supervisor’s vehicle and sustained a severe closed head injury. The workers’ compensation insurance carrier denied the claim. The basis of the denial was that the plaintiff’s accident did not “arise out of” and “in the course of” his employment. The insurance carrier argued the plaintiff was not yet at work but, instead, traveling to his supervisor’s home.

However, evidence showed that the plaintiff’s supervisor was driving the plaintiff to his own home for the plaintiff to drive a dump truck to a job site at the time of the accident.

We litigated the issue of whether this constituted a “special errand” that benefited the employer such that it was an exception to the “coming and going rule,” which provides that injuries sustained while employees are traveling to or from work are generally not compensable. We won and recovered wage loss benefits and payment of medical bills for the plaintiff.

Ruiz v. Belk Masonry Co., 148 N.C. App. 675, 559 S.E.2d 249 (2002)

The plaintiff/client was a construction worker who sustained a traumatic brain injury (TBI) when he fell from a forklift onto a concrete floor. The workers’ compensation insurance carrier denied his claim because he was an undocumented immigrant. Mr. Sumwalt litigated this case before the North Carolina Industrial Commission before a deputy commissioner and the Full Commission, as well as at the North Carolina Court of Appeals.

We were successful at all levels of appeal, and ultimately the Court of Appeals decision confirmed that undocumented workers are entitled to benefits under the North Carolina Workers’ Compensation Act. As a result, the plaintiff recovered wage loss and medical compensation as provided by the Act. We also obtained payments to the plaintiff’s brother for the care he provided to the plaintiff upon returning home from the hospital (“attendant care”).

Bridwell v. Golden Corral Steak House, 149 N.C. App. 338, 561 S.E.2d 298 (2002)

The plaintiff/client worked as a server in a restaurant. He slipped and fell at work, injuring his right knee. While awaiting surgery for the knee injury, the plaintiff’s doctor held him out of work. However, the plaintiff returned to work despite the restriction. The supervisor fired the plaintiff for remaining on a personal call after his supervisor asked him to terminate the telephone call. The plaintiff found other jobs but had difficulty performing them due to his knee injury.

We litigated this case before the North Carolina Industrial Commission before a deputy commissioner and the Full Commission. We obtained wage loss benefits and payment of the plaintiff’s medical bills, including the recommended surgery. The workers’ compensation insurance carrier filed notice of appeal to the North Carolina Court of Appeals on the issue of whether the plaintiff was entitled to wage loss benefits. The Court of Appeals’ decision dealt with the issue of “disability,” as defined by the North Carolina Workers’ Compensation Act. We ultimately won on appeal, and the Court of Appeals affirmed the Commission’s previous award to our client.

London v. Snak Time Catering, 136 N.C. App. 473, 525 S.E.2d 203 (2000)

The plaintiff/client was the owner of his own company. He suffered a traumatic brain injury in a car accident while on the job, resulting in hospitalization for an extended period. Upon discharge from the hospital, he required assistance at home (“attendant care”).

His wife stopped working to provide the attendant care that the plaintiff required. Mr. Sumwalt litigated this case before the North Carolina Industrial Commission by a deputy commission and the Full Commission. It was then appealed to the North Carolina Court of Appeals. Through successful litigation, he obtained a payment to the plaintiff’s wife for the attendant care she provided to the plaintiff and home health care through an outside agency when the plaintiff’s wife needed relief.

The London case is notable because it solidified that insurance carriers are responsible for reimbursing the family members of injured workers for providing attendant care when the insurance carrier denies such care.

Shah v. Howard Johnson, 140 N.C. App. 58, 535 S.E.2d 577 (2000)

The plaintiff/client worked as a desk clerk and night auditor at a motel. He was paid weekly and received free room and board at the motel as part of his compensation. While working in this position, the plaintiff was robbed at gunpoint and shot multiple times.

He survived and underwent numerous surgeries while in the hospital. This claim was litigated before the North Carolina Industrial Commission at the deputy commissioner level and was appealed to the Full Commission. As a result of that litigation, the plaintiff recovered payment for his lost wages and medical bills. The workers’ compensation insurance carrier further appealed the decision to the North Carolina Court of Appeals.

The primary issue on appeal was whether the value of the lodging the plaintiff received counted towards his “average weekly wage” for purposes of determining the amount of his weekly workers’ compensation checks (known as “temporary total disability benefits”). We prevailed on this issue and the Court of Appeals determined that the value of employer-provided lodging is included in an employee’s “average weekly wage” calculation.