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Navigating Workplace Violence Claims Under the North Carolina
Workers’ Compensation Act
By: Elizabeth P. Ligon & Logan H. Shipman
I. Compensability of Workplace Violence Claims
Under the North Carolina Workers’ Compensation Act, there are three conditions antecedent to the right to compensation: (1) that claimant suffered a personal injury by accident; (2) that such injury arose in the course of the employment; and (3) that such injury arose out of the employment. Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907 (1942). These conditions must be satisfied in claims for injuries resulting from violence in the workplace, as with any other work-related injury. The ways in which these conditions apply to such workplace violence claims are discussed below in greater detail.
A. Injury by Accident
The term “accident” is defined under the Act as “an unlooked for and untoward event which is not expected or designed by the injured employee.” Harding v. Thomas & Howard CO., 256 N.C. 427, 428, 124 S.E.2d 109, 110-11 (1962). Although workplace violence, such as an assault, is an intentional act, it may qualify as an accident within the meaning of the Act if the violence is “unexpected and without design on the part of the employee who suffers from it.” Robbins v. Nicholson, 281 N.C. 234, 238, 188 S.E.2d 350, 353 (1972); see also Withers v. Black, 230 N.C. 428, 432, 53 S.E.2d 668, 672 (1949). North Carolina courts have generally held that the mere fact that an injury is the result of the willful or criminal assault of a third person does not prevent the injury from being regarded as an accident. Conrad v. Cook-Lewis Foundry Co., 198 N.C. 273, 153 S.E. 266 (1930).
For example, in Robbins, an unexpected shooting at work was found to constitute an accident. Robbins, 281 N.C. at 238, 188 S.E.2d at 353. Likewise, in Withers, the North Carolina Supreme Court found the claimant sustained an injury by accident when a fellow employee purposefully threw a hod of mortar composed of sand and lime into the claimant’s face, seriously injuring his eyes. Withers, 230 N.C. at 432, 53 S.E.2d at 672. An assault in which an employee kicked the claimant in her leg has also constituted an injury by accident. Daniels v. Swofford, 55 N.C. App 555, 286 S.E.2d 582 (1982). Given most instances of workplace violence are unlooked for and untoward events not expected or designed by the injured employee, the question of whether such incidents constitute “accidents” is rarely at issue in these claims.
B. In the Course of the Employment
The course of the employment refers to the “time, place, and circumstances under which an accidental injury occurs.” Robbins, 281 N.C. at 238, 188 S.E.2d at 353. An injury arises in the course of the employment where evidence demonstrates it “occurred during the hours of the employment and at the place of the employment while the claimant was actually engaged in the performance of the duties of the employment.” Withers, 230 N.C. at 432, 53 S.E.2d at 672. In Withers, the claimant was assaulted by a fellow employee. The Court noted the assault was in the course of the claimant’s employment because the claimant was at work and performing his job duties when his fellow employee hurled the hod of mortar into his face. Id. Since instances of workplace violence tend to, by definition, occur during the hours of employment and at the place of employment, this second element of compensability is rarely contested. Instead, the primary issue in such workplace violence claims typically involves the question of whether the injury arose out of employment.
C. Arising Out of Employment
In claims involving workplace violence, the primary dispute is most often whether the injury arose out of the claimant’s employment. An accident that occurs during the course of employment does not Ipso facto arise out of it. Robbins, 281 N.C. at 238, 188 S.E.2d at 354. The injury suffered as a result of workplace violence must be incidental to some duty of employment. Ashley v. F-W Chevrolet Co., 222 N.C. 25, 21 S.E.2d 834 (1942). The assault arises out of the employment when it is a “natural and probable” consequence or incident of the claimant’s job and a “natural result of one of its risks, so that there is some causal relation between the injury and the performance of some service of the employment.” Robbins, 281 N.C. at 239, 188 S.E.2d at 354. Where a claimant is assaulted by a fellow employee due to a dispute about the manner of work, use of tools, interference, etc. it is inferred that the injury arose out of the employment. Withers, 230 N.C. at 433, 53 S.E.2d at 672-73. The danger which causes the workplace violence must be a risk connected with the employment and has flowed from that employment as a rational consequence. Gallimore v. Marilyn’s Shoes, 292 N.C. 399, 233 S.E.2d 529 (1977). Furthermore, the danger which causes the assault must be “peculiar to the work and not common to the neighborhood.” Id. at 405, 233 S.E.2d at 533.
The North Carolina Court of Appeals held that the assault inflicted upon the claimant in D’Aquisto v. Mission St. Joseph’s Health Sys., 171 N.C. App. 216, 614 S.E.2d 583 (2005), rev’d in part, 360 N.C. 567, 633 S.E.2d 89 (2006), was a compensable workers’ compensation injury because the claimant’s employment put her at an increased risk of such an assault. The claimant, a hospital employee, was injured by an assailant while she was carrying business records to the hospital’s morgue, where few, if any, people were expected to be in her vicinity. Id. at 224, 614 S.E.2d at 588.
Similarly, the North Carolina Supreme Court in Withers found the injury sustained by the claimant after being assaulted by a fellow employee was compensable because it arose out of his employment. Withers, 230 N.C. at 433, 53 S.E.2d at 672-73. In support of their holding, the Court noted the claimant and assailant did not know each other outside of their employment. Id. at 433, 53 S.E.2d at 672. They got into an argument over the work they were performing for their common employer, and that argument led to the assault and the claimant’s resulting injury. Id. The Court reasoned “where [employees] are working together at the same work disagreements may be expected to arise about the work, the manner of doing it… and occasionally blows and fighting.” Id. at 434, 53 S.E.2d at 673.
However, there are several instances in which an accident sustained in the course of employment because of the workplace violence does not constitute a compensable injury arising out of the employment. For instance, if a claimant is assaulted by a fellow employee as a result of anger, hatred, revenge, or vindictiveness which is not related to their employment, the injury is attributed to the voluntary act of the assailant and is not considered an incident of the employment. Ashley, 222 N.C. at 25, 21 S.E.2d at 835. This is true even if the claimant was engaged in the performance of his duties at that time. Robbins, 281 N.C. at 240, 188 S.E.2d at 354. Indeed, in cases where the claimant’s employment may have provided a convenient opportunity for workplace violence, the injury does not arise out of the claimant’s employment if there is no basis for a reasonable inference that the nature of the employment created the risk of such an attack. Id. Similarly, an injury stemming from violence at the workplace is not compensable if it is inflicted upon the claimant by a third party because of a personal relationship unrelated to the claimant’s employment.
In Dildy v. MBW Investments, Inc., 152 N.C. App. 65, 566 S.E.2d 759, the claimant sought workers’ compensation benefits after being shot by her former boyfriend while at work. The claimant was employed as a cashier at a gas station, which primarily involved conducting transactions for gasoline and merchandise. Id. at 66, 566 S.E.2d at 761. Outside of work, the claimant was previously involved in an abusive, violent relationship with her former boyfriend, but she never told her fellow employees or supervisors about the relationship. Id. While the employee was engaged in her duties at the cash register, her former boyfriend entered the store and shot her in an attempt to kill her. Id. at 67, 566 S.E.2d at 762. The Court found the claimant’s injuries did not arise out of her employment because the assault was the result of a personal relationship between her and her former boyfriend. It was not related to her employment. Id. at 71-72, 566 S.E.2d at 764. Her work as a cashier did not create the risk of the assault by her former abusive boyfriend, so her claim was denied. Id.
The Court in Robbins likewise found the injury suffered as a result of workplace violence was not compensable under the Act. Robbins, 281 N.C. at 242, 188 S.E.2d at 356. The claimant in Robbins was shot by a fellow employee’s jealous spouse. Id. at 241, 188 S.E.2d at 355. The assault was entirely unrelated to the nature of the claimant’s employment and did not result from the work the claimant was required to do. Id. The North Carolina Supreme Court noted any male employee whose duties required him to work with the female victim would have been equally endangered. Id. The origin of the assault was the assailant’s alcoholism and his personal relationship with his spouse. Id. at 242, 188 S.E.2d at 355. The Court concluded the “risk of murder by a jealous spouse is not one which a rational mind would anticipate as an incident of the employment of both sexes in a business or industry… [it] is a hazard common to the neighborhood that is independent of the relation of master and servant.” Robbins, 281 N.C. at 242, 188 S.E.2d at 356.
II. Practice Pointers and Takeaways
As evidenced by the above, the determination of whether an injury stemming from workplace violence is compensable most often depends on whether the violent act arises out of the claimant’s employment. To make such a determination, it is crucial that practitioners conduct a thorough factual investigation into the claim. Such an investigation should include a deep dive into the personal relationship, if any, between the claimant and the assailant. Do they know each other outside of work? If the assailant is a fellow employee, did he or she work the same shifts as the claimant? Did the conflict arise as a result of the claimant’s employment duties?
The claim is likely to be found compensable if the investigation reveals the reason for the claimant’s assault was related to their employment. Evidence demonstrating the workplace violence was the direct result of an outside, personal conflict or other vendetta may insulate defendants from liability on grounds that the injury did not arise out of the claimant’s employment.
In claims involving an assault on an employee by a non-employed third person, practitioners should investigate whether the claimant’s employment put them at an increased risk for the workplace violence. Is the danger which caused the assault peculiar to the claimant’s work or is it common to the neighborhood? Evidence demonstrating the assault flowed as a rational consequence of the claimant’s employment is likely to be held as a compensable injury by accident.
As you navigate workers’ compensation claims involving workplace violence, it is crucial to fully investigate the facts of the claim to determine whether the incident arose out of the claimant’s employment.
Written by: Lindsay Underwood
Every few years, a Pleasant claim makes its way to the Court of Appeals and almost always serves as a reminder that the facts must be particularly egregious to warrant such a claim. As a reminder, if an employee is injured on the job, filing a workers’ compensation claim is typically the exclusive remedy for recovery. In most cases, the employee cannot file a separate personal injury claim against the employer. However, there is an exception to that rule. The Pleasant case from 1985 established an exception to the exclusivity provision of the workers’ compensation system that allows employees injured by the willful, wanton, and reckless negligence of a co-employee to sue that co-employee or employer directly. For a Pleasant claim to survive a 12(b)(6) Motion to Dismiss, there must be evidence of wanton and reckless behavior equivalent to an intentional act. The burden of proof is on the plaintiff to show that the behavior is “so gross as to be equivalent in spirit to actual intent.” Our courts have held that even unquestionably negligent behavior rarely meets the high standard of “willful, wanton or reckless’ negligence.” Thus, the plaintiff faces a high standard and a difficult burden in these claims.
The most recent case from the Court of Appeals revisiting the Pleasant standard is Estate of Rodney Baker v. David W. Reinhart and Randy Reinhardt. In this case, the plaintiff worked as a bandsaw operator. On March 17, 2020, Plaintiff, without direction or instruction from the employer, was cleaning around a machine when he stepped into a partially enclosed area. After entering this area, an OSHA report later revealed that Plaintiff “was crushed between the Machine’s lower table arm and a steel support structure on the side of the building, suffering trauma to his chest.” Plaintiff sustained significant injuries, and ultimately passed away from his injuries. During OSHA’s investigation, other employees reported they were aware of the dangers of stepping into that specific area, were aware of the machine’s guarding hazard, and knew they could not be in the area where Plaintiff was found when the machine was running. OSHA cited the employer with a serious violation for failing to provide “one or more methods of machine guarding” which could have prevented the accident.
Plaintiff argued that the plant manager knew of the hazard, admitted in the past that the area would result in life-threatening harm, and claimed to be too busy to complete the necessary fencing that could have prevented injury. The claim against the plant manager was ultimately dismissed, and the Court of Appeals upheld the dismissal. The Court looked to the employer’s award-wining safety program, quarterly briefings, and well-documented and explicit instructions to turn machines off and come to a complete stop before bending over and cleaning around the machine. The Court also noted that in the 15 years of operation, all of which occurred during Plaintiff’s employment, (1) nobody was injured on the machine or its predecessor; (2) OSHA issued no violations related to the same; and (3) Defendant-Employer received no safety complaints from staff about the machines. Further, the defendants did not request or direct the plaintiff to clean around the machine.
This case continues to demonstrate that a plaintiff has a high burden to meet to survive a Motion to Dismiss when it comes to asserting a Pleasant claim. Even with the high standard and burden for plaintiffs, it is worthwhile to note some of the factors the Court considered in this claim. Specifically, employers should document and analyze any concerns regarding dangerous areas, machines that need safety improvements, or other hazards. Employers should then take the necessary steps to educate employees on the areas or machines at issue, provide PPE/remedy areas of concern, and provide sufficient ongoing trainings. The Court will also examine the employer/co-worker’s knowledge of the level of danger of the activity, whether the employer/co-worker was present at the time of such injury, and/or whether the employer/co-worker directed the employee to engage in the dangerous activity. The Court will also take past OSHA violations and safety records into account. Out of the above, it appears the most persuasive is the employers willingness to provide ongoing training/experience.
Written by: Tracey Jones
Philip A. Baddour was confirmed by the General Assembly to serve a second term as a commissioner.
The 28th Annual North Carolina Industrial Commission Workers’ Compensation Educational Conference will be held October 4 through 6, 2023 at the Raleigh Convention Center.
New Mediation Rules Regarding Participation
The Supreme Court of North Carolina has approved amendments to the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions, which went into effect May 1, 2023. Among the amended Superior Court mediation rules is Rule 4, which governs attendance at Superior Court mediations.
Attendance at Industrial Commission mediations is governed by Rule 104 of the Industrial Commission’s mediation rules (11 NCAC 23G .0104). Paragraph (b) of Rule 104 provides that the attendance method for Industrial Commission mediations shall be the same as the attendance method set forth in Rule 4 of the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions. Therefore, the Rule 4 amendments affect the way the attendance method will be determined in Industrial Commission mediations beginning May 1, 2023.
Under the Rule 4 amendments, if all parties and the mediator agree on the mediation attendance method (which can be remote, in-person, or a hybrid of the two where some parties are participating remotely while others are together in-person), then the mediation will be held using the agreed-upon attendance method. If an agreement on the attendance method cannot be reached, then attendance will be in-person unless the mediator has designated in the Dispute Resolution Commission’s Mediator Information Directory that he or she will only conduct remote mediations. However, in all cases, a party who is required to attend the mediation may file a motion with the Industrial Commission Dispute Resolution Coordinator asking that a different method of attendance be ordered. For example, a party who wishes to participate remotely but does not object to others participating in-person may file a motion requesting an order allowing a hybrid of remote and in-person attendance at the mediation.
This is a change to the rules in that the previous default method of attendance when agreement could not be reached was remote. This new change makes the default attendance in person. It is too early to tell how the Industrial Commission will rule on Motions submitted from either side regarding remote attendance.
Written by: Kyla Block
Prescription medications can be a stumbling block when it comes time to resolve a workers’ compensation claim. Insurance carriers often have preferred vendors they utilize to obtain favorable prescription costs or negotiated agreements with pharmacies, leading to less expensive medical exposure during the pendency of claims. However, claimants are often unable to benefit from these cost savings once their claim has been settled. This becomes a problem for both sides when trying to resolve a claim. The claimant is unsure of the price his/her medications will cost, causing them to demand a higher settlement value and making the overall process more expensive. It consequently costs defendants more to resolve the claim if they are able to do so.
Enter Mark Cuban CostPlus Drug Company. Co-founded by Dr. Alexander Oshmyansky and Mark Cuban in January 2022, Mark Cuban CostPlus Drug Company was created with the express purpose of providing patients with access to safe, affordable medicines regardless of whether they have insurance or a low deductible health care plan. Instead of negotiating prices through pharmacy benefit managers, the company directly negotiates with manufacturers to get generic drugs at wholesale prices. It then sells those drugs to consumers with prescriptions with a 15% markup, a $3 pharmacy labor charge, and $5 for shipping, according to the pharmacy’s website.
CostPlus Drugs aims to disrupt the traditional pharmaceutical supply chain and offer transparency, affordability, and accessibility to prescription medications. Eliminating the middleman and replacing him with a straightforward 15% price markup results in an astonishing difference in the cost of many medications. For example, a 20 mg, 90-tablet prescription of Escitalopram, which costs around $180.00 from a regular pharmacy, would only cost $12.50 from Mark Cuban CostPlus Drug Company according to the latest data. Lidocaine ointment (Generic for Xylocaine) is $5.44 for a tube, compared to its $243.61 retail price. The Lidocaine patch (Generic for Lidoderm) is $46.50, compared to $246.90 retail. Meloxicam (Generic for Mobic) is $3.60 versus $21.39 at a retail price.
Being able to suggest lower prescription costs (and support it with evidence) allows the parties in a workers’ compensation case to reach common ground on future medical treatment costs, which is often murky depending on whether the claimant has insurance or not and what that insurance plan covers. Mark Cuban CostPlus Drug Company provides transparency on prescription costs after the claim ends and allows claimants to obtain much needed prescriptions at a fraction of the price. Suggesting options like Mark Cuban CostPlus Drug Company allows defendants to provide a solution to a potential barrier to settlement, hopefully facilitating resolution of the claim.
For more information on Mark Cuban CostPlus, see this interesting article.
Written by: Logan Shipman
The N.C. Court of Appeals recently provided new guidance on calculating the average weekly wage (AWW) in a case involving a summer job for a full time graduate student. Although the case also addressed the admissibility of testimony under Rule of Evidence 702, the discussion below focuses primarily on the Court’s average weekly wage analysis.
In Gilliam, the decedent was an employee of a temporary employment agency and assigned to work at Bimbo Bakeries in a general utility position. At the time, the decedent was enrolled in graduate school at Mississippi College and began working for Defendant-Employer earlier that summer. Although his employment was at-will with no specified end date, the evidence demonstrated the decedent was set to end his employment with Defendant-Employer in August 2018, to return to school at Mississippi College.
On July 29, 2018, Plaintiff was working on the lid line in the bakery when he collapsed on the floor and was found unresponsive. EMS was called and he was pronounced dead at the hospital. An autopsy revealed the cause of death was probably dysrhythmia due to cardiomegaly. It showed an enlarged heart with increased concentric left ventricle thickness and noted that an enlarged heart impairs proper coordinated electrical conduction and predisposes the person to a fatal arrythmia. The autopsy further demonstrated increased fibrosis. Decedent’s parents filed a claim, alleging that Decedent collapsed and died while working in high heat inside the bakery. Defendants denied Plaintiffs’ claim on the basis that Decedent died from natural causes.
As noted above, the primary issue in this case was the proper method of calculating Plaintiff’s average weekly wage given his short term of employment. Plaintiffs contended the decedent’s average weekly wage should be calculated pursuant to the third method of calculating average weekly wage under N.C. Gen. Stat. § 97-2(5), which states, “where the employment prior to the injury extended over a period of fewer than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both parties will be thereby obtained.” Defendants, however, contended that the third method overestimated Plaintiff’s wages he would have earned but for the accident, since he was slated to end his employment shortly after the accident to return to graduate school. Defendants argued that the decedent’s average weekly wage should instead be calculated to the fifth method, which states, “but where for exceptional reasons the foregoing [methods of calculating average weekly wages] would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”
After a hearing, the Deputy Commissioner concluded Decedent’s death was compensable and ordered Defendants to pay death benefits pursuant to the third statutory method of calculating average weekly wage. Defendants appealed to the Full Commission. The Full Commission affirmed the compensability of Decedent’s death but recalculated the average weekly wage pursuant to the fifth statutory method. The Full Commission found that the evidence demonstrated that Decedent would have ended his employment with Defendant-Employer and returned to school in August 2018. Medical records indicated Decedent was currently in grad school; a Facebook post from July 18, 2018, stated he was “so glad school starts in August so [he didn’t] have much longer in the bakery;” his sister testified he was in school at the time of his death; and his work history in the previous few years reflected he worked during the summer before returning to school each August. The Court concluded this evidence was sufficient to support its finding that Decedent would have ended his employment in August 2018. It held therefore that because he began working for Defendant-Employer on May 17, 2018, and would have ceased working in August 2018, within a few weeks of his death, Decedent’s earnings from May 17, 2018, to August 2018 would have constituted his total earnings in 2018. Thus, calculating his average weekly wage using the third method would overestimate his wages he would have earned but for the compensable accident. The Full Commission, using the fifth statutory method, calculated Plaintiff’s average weekly wage by adding his earned wages up to the date of the compensable accident and dividing that sum by fifty-two weeks. Defendants appealed the Full Commission’s Opinion and Award, and Plaintiffs cross-appealed.
The Court of Appeals ultimately found the Full Commission’s calculation did not fully capture the wages he would have earned but for the accident because it did not account for the remaining few weeks he would have worked before returning to school. The Court remanded the case to find the date he would have ended his employment and to recalculate the average weekly wage using that sum and dividing it by fifty-two weeks. The appeal was dismissed in part and vacated and remanded with instructions in part.
Gilliam provides support for a lower calculation of an injured employee’s average weekly wage in cases in which the injured employee had worked less than fifty-two weeks as of the date of injury, but where the evidence demonstrates that the employee was going to terminate employment with the defendant-employer at a specific date shortly after the accident. As in Gilliam, this new guidance is particularly applicable to cases involving seasonal employment.
Written by: Tracey Jones
Amber May appointed as the NCIC’s Chief Operating Office Effective June 1, 2023
The Industrial Commission announced that Amber May will serve as its Chief Operating Officer effective June 1, 2023. May currently serves as the Commission’s General Counsel, having returned to the Commission in March of 2022 after eight years as Rules Review Commission Counsel at the North Carolina Office of Administrative Hearings. Prior to joining the Rules Review Commission, May served as the Law Clerk to former Commission Chair Pamela T. Young. Before that, May worked as a Staff Attorney for Legal Aid of North Carolina, where she represented clients in a wide variety of civil matters and gained substantial litigation experience. May earned her law degree from North Carolina Central University School of Law and her Bachelor’s Degree in Business Administration from Meredith College.
Pam Young retiring from the NCIC Effective June 1, 2023
The Industrial Commission’s Chief Operating Officer, Pamela T. Young, is retiring effective June 1, 2023. Young’s service to the State of North Carolina includes nearly 20 years at the Industrial Commission where she served as a Deputy Commissioner from 1996-2002; a Commissioner from 2003-2014, during which time she was designated by the Governor as Vice-Chair and then Chair of the Commission; and most recently as Chief Operating Officer since 2020.
William B. Wallace appointed to serve as a Deputy Commissioner Effective March 13, 2023
William B. Wallace was appointed to serve as a Deputy Commissioner beginning March 13, 2023. Wallace began practicing workers’ compensation law in 1998, and he has represented both plaintiffs and defendants in workers’ compensation cases. He is a North Carolina State Bar Board Certified Specialist in workers’ compensation law and a North Carolina Dispute Resolution Commission certified mediator. Wallace is a former Chair of the North Carolina Bar Association’s Workers’ Compensation Section. Wallace earned his undergraduate degree from the University of North Carolina at Chapel Hill and his J.D. from the University of Richmond T.C. Williams School of Law. Wallace will be assigned to the Commission’s Charlotte regional office.
Elias W. Admassu appointed to serve as a Deputy Commissioner Effective February 27, 2023
Elias W. Admassu was appointed to serve as a Deputy Commissioner in the Raleigh office beginning February 27, 2023. Admassu brings considerable workers’ compensation experience to the Commission, having litigated claims before the Industrial Commission from 2009 through 2020 while representing employers and insurers. He also has significant employment law and governmental experience, having served in important advisory roles in the Chief Counsel’s Office of the North Carolina Division of Employment Security and as counsel to the Human Resources and General Counsel’s Office of the North Carolina Department of Justice over the past few years. Most recently, Admassu was a Special Deputy Attorney General responsible for representing the North Carolina Department of Health and Human Services in complex employment, labor, disability, and constitutional law litigation in federal and state courts and before administrative agencies. Admassu earned his undergraduate degree from Howard University and his J.D. from the University of North Carolina School of Law.
Phillip A. Baddour, III reappointed to the Full Commission
Governor Roy Cooper has reappointed Philip A. Baddour, III to serve a second six-year term as a Commissioner on the North Carolina Industrial Commission beginning May 1, 2023, subject to confirmation by the North Carolina General Assembly.
In March of 2017, Baddour was appointed by Governor Cooper to serve his first term as a Commissioner, and he was confirmed by the General Assembly in June of 2017. In February of 2019, Governor Cooper designated Baddour as the Chair of the Industrial Commission. Baddour previously served as a Deputy Commissioner at the Industrial Commission for 17 years. Baddour received his B.A. degree from the University of North Carolina at Chapel Hill in 1992 and earned his law degree from Campbell University in 1996.
New Procedure: Report of Mediator Fee Invoices to be emailed when the Mediator is appointed.
On Monday, February 20, 2023, the Industrial Commission began emailing Report of Mediator fee invoices at the time the mediator is appointed. The Report of Mediator invoice will be sent to defense counsel by email shortly after the Appointment of Mediator Order is emailed.
This new procedure, which was created in response to stakeholder feedback, will give employers and carriers additional time to process and pay Report of Mediator fees. Upon receipt of the Report of Mediator invoice, the $200 fee can be paid online via credit card (MasterCard or Visa) or e-Check. A link for online payment will be provided in the email. The $200 fee also may be paid by paper check mailed to the Industrial Commission.
While the Industrial Commission strongly encourages early payment of Report of Mediator fees to avoid past due invoices, this new procedure does not change the Report of Mediator fee due date (i.e., payment of the $200 Report of Mediator fee is due no later than seven (7) days from the deadline for completing mediation or seven (7) days from the date mediation is completed, whichever is earlier). With the ability to pay Report of Mediator fees early, however, employers and carriers can avoid the risk of late payment (which may subject them to statutory penalties and interest) and can more efficiently manage and bring closure to their case files.
Written by: Lindsay Underwood
One of the hot topics in Workers’ Compensation over the past few years has been entitlement to extended benefits and what standard the courts would apply to determine the same. Most recently, the Court of Appeals issued a decision in one of the cases currently pending – Sturdivant v. NC Department of Public Safety. Interestingly, the opinion has since been withdrawn, and it is unclear how the Court will move forward at this juncture. Even so, the opinion merits discussion.
As a reminder, the key question presented by the extended benefits cases is what analysis the courts would use to determine entitlement to benefits beyond the 500 weeks. The plaintiff’s bar argued that the standard remains the same in pre-500 week and post-500 week cases. Defendants argued that benefits beyond the 500-week cap have an increased standard, such that a claimant has the burden to show a total loss of wage-earning capacity.
In Sturdivant, the claimant sustained a compensable injury to the back in 2011. Claimant was a high school graduate. He was certified to drive a forklift, had training in blueprint reading, and had CPR experience. The claimant had been on his church’s Board of Trustees since 2008. Four of the claimant’s physicians testified he could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Claimant only started looking for work in January 2020 and produced a job log, but some of the entries were inaccurate. Defendants’ vocational expert met with the claimant, performed a transferrable skills analysis, performed a labor market survey and identified several jobs in the surrounding area that claimant was capable of performing. Claimant’s vocational expert testified claimant was unable to work at all. However, the vocational expert did not contact any potential employers, and only looked for jobs in Anson County. As a result, Deputy Commissioner Erin Taylor afforded more weight to the defendants’ vocational expert and determined that claimant could not show a total loss of wage-earning capacity and was not entitled to extended benefits beyond the 500-week cap on benefits.
Plaintiff appealed to the Full Commission, and the Full Commission affirmed the decision finding claimant failed to meet his burden to establish a total loss of wage-earning capacity. Plaintiff appealed to the Court of Appeals. The Court of Appeals agreed with the lower courts and affirmed the denial of extended benefits, but specifically noted that the standard for total loss of wage-earning capacity and total disability are the same. Though they found that claimant still has the burden of proof to show they sustained the loss, the standard for disability does not change when a claimant applies for benefits beyond the 500 week cap. The Court further noted claimant could receive extended benefits even if not medically restricted from all work, if he showed there were no jobs available to him. Since the claimant did not meet his burden, he was not entitled to extended benefits in this case.
Though a victory for the Defendants in this specific case, the conclusion that there is no higher standard for disability once the claimant applies for extended benefits creates significant additional exposure for Defendants. However, as noted above, the Court has now withdrawn its opinion. It is unclear how they will proceed, or what this means for extended benefit cases moving forward. It should be noted that Mary Betts v. North Carolina Department of Health and Human Services – Cherry Hospital, is still pending before the Court of Appeals and a decision has not been issued in that case.
As we are somewhat back to square one when it comes to guidance in light of the withdrawal, our recommendations for handling remain the same: retain credible experts (both medical and vocational), investigate claimant’s job search, hobbies, and non-work related activities and participation, obtain a detailed understanding of claimant’s job history and educational background, and make sure your vocational expert meets with claimant to identify possible jobs and explore work history.
Written by: Kyla Block
Amended Full Commission Decision Provides Updated Guidance on Navigating Requests for Second Opinions and Clarifies the Issue of Payment Under the Fee Schedule
A long-standing issue under the Workers’ Compensation Act has been second opinions on treatment options under N.C. Gen. Stat. § 97-25(b). The parties have frequently been at odds over whether defendants must 1) issue a prepayment for that visit and 2) pay beyond the NCIC fee schedule amount for the visit. Many administrative motions on the issue have ensued over the years. In May of 2202, the Full Commission issued a non-binding decision, Wyatt v. The Golden Mint, Inc., I.C. No. 20-038523 (May 2022), holding that:
You can find my partner Matt Marriott’s more extensive write up on that decision here. Following the Wyatt decision, Plaintiff filed Plaintiff’s Motion to Reconsider the Opinion and Award Issued on May 12, 2022 and Request for Additional Findings. While Plaintiff’s Motion was pending, the Commission, during its annual publishing of the Medical Fee Schedule Tables for 2022, identified inaccuracies in the fee schedule tables and corrected the inaccuracies in line with the requirements of N.C. Gen. Stat. § 97-26 and Subchapter J of the Industrial Commission’s rules. These changes removed the CPT Cod 99456 for second opinions and replaced it with UCR or Pay Per Agreement. UCR stands for usual, customary, and reasonable. Thereafter Plaintiff filed Plaintiff’s Supplement to Plaintiff’s Motion to Reconsider the Opinion and Award Issued on May 12, 2022 and Request for Additional Findings and pointed to the changes to the second opinion code to reflect “UCR or Pay Per Agreement” and noted that it no longer had a specific monetary amount. Plaintiff asserted that per the updated fee schedule, the second opinion fee would now be what was usual and customary.
The Full Commission, in amending its Opinion and Award to find that the Medical Fee Schedule sets the maximum fee allowable by a physician conducting a 97-25(b) second opinion examination at “UCR or Pay Per Agreement”, found that Plaintiff was entitled to have Defendants pay his selected 97-25(b) expert or any other provider the usual, customary, and reasonable charge for such a provider in such a circumstance or a rate agreed upon by the physician and the parties. The Full Commission also noted that Defendants did not need to make prepayment, but that any motions or requests for a specific prior approval to charge “shall” be submitted to the Commission for each charge. Based on the facts in Wyatt, the Full Commission declined to grant Plaintiff’s request for approval of his specific physician’s fee, indicating there was insufficient evidence to show that plaintiff’s provider’s fee was reasonable; the Act specified that providers not be paid for services prior to the rending of services and said report; that the Commission had the responsibility of assuring medical and related expenses be kept within reasonable and appropriate limits; and the routine nature of the request for a 97-25(b) second opinion examination.
Practice Pointers and Takeaways
As we have noted, a Full Commission decision is not binding case law like a decision from the North Carolina Court of Appeals or Supreme Court would be. However, it does set the tone for how the Commission will likely be deciding these matters going forward. Thus, given the change to the Medical Fee Schedule, carriers and employers should assume they will be ordered to pay the usual, customary, and reasonable charges associated with second opinions under N.C. Gen. Stat. §97-25(b). However, since Defendants will be paying the usual, customary, and reasonable charges going forward, and the parties are encouraged to agree on the provider per the statute, there may be an argument that all else being equal, the provider with the lowest charge should be the provider chosen, in line with the responsibility of the Commission to keep medical and related expenses within reasonable and appropriate limits.
Additionally, Employers and Carriers should expect to see more administrative motions on the issue of prepayment under N.C. Gen. Stat. §97-90(a). In responding to these motions, evidence regarding the usual, customary, and reasonable charges will likely be key, and a failure to provide the same by one side, may result in an adverse decision. A reasonable alternative to motions on the prepayment issue may be suggesting that Plaintiff pay the prepayment upfront with Defendants issuing the full charge upon receipt of the report.
Written by: Tracey Jones
Starting February 20, 2023, the Industrial Commission will begin emailing Report of Mediator fee invoices at the time the mediator is appointed. This new procedure will not impact the fee’s due date but is being introduced in an effort to allow additional time for processing and payment. The $200 fee can be paid either online via credit card or e-Check (a link for payment will be provided in the email) or by mailed paper check. With this new procedure, the Industrial Commission hopes to encourage early payment so employers and carriers can manage cases more efficiently while also being able to avoid the risk of past due invoices, penalties, and interest.
Note: Payment of the $200 Report of Mediator fee is due no later than seven (7) days from the deadline for completing mediation or seven (7) days from the date mediation is completed, whichever is earlier. The Commission is issuing penalties when they receive late payments, so timely processing these invoices is important.
Written by: Tracey Jones
Carolyn J. Thompson Appointed to Serve as Deputy Commissioner
Carolyn J. Thompson was appointed to serve as a Deputy Commissioner and her term began on January 2, 2023. Thompson previously served as a District Court judge and then a Resident Superior Court judge in the 9th Judicial District of North Carolina for a total of nine years. She worked in litigation for 16 years prior to that, and also as a certified mediator in Superior Court cases and Family Financial Settlement disputes. She is assigned to the Commission’s Raleigh office.
Kevin V. Howell Reappointed to Second Term as Deputy Commissioner
Deputy Commissioner Kevin V. Howell has been reappointed to serve a second term, which began on December 30, 2022. Deputy Commissioner Howell will continue to serve out of the Commission’s Raleigh office.
Strict Enforcement of Late Responsive Filings Pursuant to N.C.G.S. § 97-18(j)
The Commission has been regularly assessing sanctions for Carriers/Employers failing to file a Form 60, 61, or 63 within thirty (30) days following notice from the Commission of the filing of a claim. Failure to file a Form within the requisite period results in a fine of $400.00. After the initial sanction of $400.00, Carriers/Employers shall have thirty (30) days anew in which to remit payment-in-full for the sanction AND to file a Form 60, 61, or 63. Failure to do either will result in an additional $200.00 sanction and being referred to an Enforcement Docket before the Commission for additional sanctions. These sanctions could include, but are not limited to, contempt.
Though this rule has been in effect since 2017, we are now seeing strict enforcement and numerous defendants have been scheduled on a contempt docket for failure to file the Forms, or to remit payment for the respective fines.
Corrected Medical Fee Schedule Tables for 2022
Rule 11 NCAC 23J .0102 requires the Industrial Commission to publish annually on its website three tables (a Professional Fee Schedule Table, a Durable Medical Equipment (DME) Fee Schedule Table, and a Clinical Laboratory Fee Schedule Table). The Commission has reported it recently discovered inaccuracies in the fee schedule tables, and it has now corrected the inaccuracies to align with the information in the 2022 fee schedule tables and with the requirements of N.C. Gen. Stat. § 97-26 and Subchapter J of the Industrial Commission’s rules. The revised schedule is posted on the Commission’s website.
Maximum Weekly Benefit for 2023
The Commission has established the maximum weekly benefit for 2023 pursuant to N.C.G.S. § 97-29. As of January 1, 2023, the maximum weekly benefit applicable to all injuries arising on or after January 1, 2023 is $1,254.00.