Kristine L. Prati successfully defended an appeal brought by the employee to the Full Commission requesting reinstatement of indemnity benefits. In the Opinion and Award filed on August 15, 2016, the Full Commission agreed with the prior ruling of the Deputy Commissioner and refused to award ongoing temporary total disability benefits as the employee failed to prove that he was disabled.
Kristine L. Prati of Wilson Ratledge has successfully defended two matters before the Full Commission. In the first matter, the plaintiff appealed the deputy commissioner’s denial of indemnity benefits and compensability of a newly diagnosed occupational disease to the Full Commission. In an Opinion and Award filed on April 22, 2016, the Full Commission upheld the Deputy Commissioner’s determination. Of significance, the Full Commission concluded that the Parsons and Perez presumptions were not applicable to the case, as a prior Consent Opinion and Award with one of the three defendants only accepted compensability of bilateral carpal tunnel syndrome, and not the newly diagnosed occupational disease of flexor carpi radialis tendonitis. Instead, the Full Commission concluded that it was Plaintiff’s burden of proving that the newly diagnosed occupational disease was compensable.
Upon review of the evidence, the Full Commission determined: (1) the plaintiff failed to prove that her employment with any of the named employers placed her at an increased risk of contracting the newly diagnosed occupational disease; (2) the plaintiff failed to prove that her employment with any of the named defendants caused her newly diagnosed occupational disease; and (3) the plaintiff was not entitled to indemnity benefits, as her newly diagnosed occupational disease was the cause of her inability to work, not her compensable carpal tunnel syndrome condition.
In the second matter, the plaintiff appealed the Deputy Commissioner’s full denial of the claim to the Full Commission. In an Opinion and Award filed on May 2, 2016, the Full Commission upheld the Deputy Commissioner’s determination, agreeing that Plaintiff was engaged in her normal work routine at the time of the alleged accident and failed to describe an unlooked for, untoward, or unexpected event that occurred on the alleged date of injury.
Kristine L. Prati of Wilson Ratledge has successfully defended two cases before the Industrial Commission. The primary issue in the first case was whether the plaintiff was entitled to a reinstatement of temporary total disability benefits. On January 25, 2016, the Deputy Commissioner denied Plaintiff’s request for a reinstatement of TTD benefits, holding that Plaintiff failed to prove an impairment in his earning capacity. The Deputy Commissioner also denied Plaintiff’s request that he be provided with vocational assistance. The primary issue in the second case was whether Plaintiff was entitled to a myoelectric prosthesis. On February 11, 2016, the Deputy Commissioner denied Plaintiff’s request for the myoelectric prosthesis, holding that it was not medically or reasonably necessary.
The attorneys at Wilson Ratledge stay up to date with the latest North Carolina Workers’ Compensation cases in order to provide you the best possible outcome. Below you will find the some of the most recent North Carolina decisions.
August 5, 2015
Battle v. Meadowbrook Meat Co. (Ordinary duties)
Plaintiff testified that it was normal for delivery drivers, like him, to lean over and maneuver on pallets when making deliveries when pallets could not be moved. Plaintiff felt something in his arm pull loose when reaching down the side of a pallet to pull up a box. The Industrial Commission found that Plaintiff did not suffer a compensable injury because there was no unusual circumstance from the work performed.
Zapata Dominguez v. Francisco Domingez Masonry, Inc. (Self-employed wage earning capacity)
Plaintiff was the owner and a crew leader of Defendant company, and was the primary contact for subcontract work. Plaintiff sustained an injury which would not allow him to perform the physical duties of a brick mason. To determine if a self-employed employee has wage earning capacity, the Commission must look to whether he 1) is actively involved in the day-to-day operation of the business and 2) uses skills which would enable him to be employable in the competitive market place not withstanding his physical limitations, age, education, and experience. In this case, since Plaintiff could work as the crew leader and supervisor, he was not totally disabled, and did have wage earning capacity.
Butler v. Drive Automotive Industries of America, Inc. (Employment law, Joint employment)
In this recent 4th Circuit case, Plaintiff was hired by ResourceMFG to work at Drive. Plaintiff was harassed about her body, was called vulgar nicknames, and was touched by one of her supervisors. Plaintiff reported the behavior to ResourceMFG, but nothing was done. Plaintiff was asked to perform work day and she refused due to being tired from the overtime she was working. Drive’s supervisor cussed at her, and called her a vulgar nickname. When she told the supervisor she did not like the name calling, he told her she was a temp and was expendable. Only a few days later, Drive contacted ResourceMFG about terminating Plaintiff. Drive’s supervisor called Plaintiff and told her he could save her job in exchange for sexual favors. Plaintiff refused and was fired. Plaintiff then filed a Title VII action.
The case was moved to federal court, and the staffing agency was dropped from the lawsuit. Defendants won at a summary judgment hearing, wherein the judge found that Drive did not exercise sufficient control over Plaintiff’s employment to entitle her to a Title VII action. Although Plaintiff wore the uniform of ResourceMFG, Drive determined Plaintiff’s work duties, scheduling and supervision.
The 4th Circuit reviewed tests from other Circuits. The “control” test looks at who has the authority to hire and fire the employee, and set the conditions of employment; who supervises the employee day-to-day; and who controls the payroll, insurance and taxes of employee. The “economic realities” test determines which entity the employee relies on for work, not necessarily who is writing the paychecks.
The 4th Circuit ultimately adopted a hybrid test between the control and economic test, and determined that the joint employment doctrine was the law of the Circuit, and that an employee may have two employers, opening up claims against more employers in the future.
The attorneys at Wilson and Ratledge stay up to date with the latest North Carolina Workers’ Compensation cases in order to provide you the best possible outcome. Below you will find the some of the most recent North Carolina Court of Appeals and North Carolina Supreme Court decisions.
April 27, 2015
Fields v. H&E Equipment Services, LLC. (Futility of seeking employment)
The plaintiff was 65 years old with 10th grade education. He was a mechanic and his work history was physical labor. A physician testified that the plaintiff’s pre-existing degenerative disc disease was aggravated by his work at the defendant-employer. At hearing, the plaintiff did not present any evidence of an attempt to find work, or evidence that he was so incapacitated that he is incapable of work in any capacity. However, the Industrial Commission found disability through the futility prong of Russell v. Lowes. There was no testimony from a vocational expert that it was futile for the plaintiff to look for work. There were no statistics presented that his pre-existing condition made him incapable of returning to the labor market. The plaintiff’s medical provider only said that Plaintiff should not continue work in his current role, and did not provide testimony that it was impossible for the plaintiff to return to work. The North Carolina Court of Appeals found that, since the plaintiff did not present any expert testimony that his prior job with defendant was the only job obtainable, or any evidence showing that someone of the same age, education, experience, and physical capabilities as the plaintiff was currently not working anywhere, the plaintiff did not meet his burden of proving disability under the futility prong of Russell. The North Carolina Court of Appeals reversed the Industrial Commission’s ruling.
May 4, 2015
Birckhead v. North Carolina Dept. of Public Safety (Short-term disability credit)
A defendant adjuster provided testimony at a hearing that it was her belief that the defendant-employer’s short-term disability plan was funded 100% by defendant-employer. The North Carolina Court of Appeals found that the adjuster’s testimony was sufficient evidence to support the Industrial Commission’s finding that the employer fully funded the short-term disability policy. The North Carolina Court of Appeals affirmed the Industrial Commission’s ruling that defendants were entitled to a credit for the short-term disability payments.
Haileab v. John Q. Hammons Hotels (Causal connection within medical records)
The North Carolina Court of Appeals held that since the defendants stipulated to medical records for the hearing that provided a causal link between the plaintiff’s compensable foot injury and her subsequent left knee injury, even though those records came from a physician that had not been deposed or qualified as an expert, the medical records were sufficient to support the Industrial Commission’s finding of a causal connection between the compensable injury and subsequent left knee injury.
Chenette v. Metokote Corp. (Average weekly wage)
The plaintiff suffered a compensable injury to his back in 2007, and then again in 2010. The plaintiff began experiencing back pain again, and the Industrial Commission found that the plaintiff’s current back pain was related to his 2010 injury, and not the 2007 injury. The evidence showed that the plaintiff earned less in the year preceding his 2010 injury, than he did in the year preceding his 2007 injury. Even though the defendants filed Form 60s for both injuries, the Form 60s did not create a presumption of ongoing disability and the plaintiff had to prove that his current condition was related to his 2007 injury. However, the Commission found that since his current complaints were related to his 2010 injury, the plaintiff’s wages for the 52 weeks preceding his 2010 injury were used to calculate his TTD award.
Collins v. Seaton Corp. (Credible testimony)
The Industrial Commission rejected a physician’s testimony, where that physician testified using information provided by the plaintiff regarding the details of his injury, and where the Industrial Commission found the plaintiff’s story of the events was not credible. The North Carolina Court of Appeals upheld the Commission’s decision to reject the physician’s testimony.