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Teague Campbell attorneys Kyla Block and Melissa Woodard recently received a favorable decision from the Full Commission in a nuanced disability argument. Melissa argued the case before the Full Commission in February 2019 and the Commission’s Opinion and Award was filed July 2019. The claim involved a high-level employee at a production plant who sustained a compensable back injury, which necessitated a lumbar fusion in 2013. The employee was out of work for several months, then returned to work only to sustain a second back injury. The second injury also required surgery, and the employee never physically returned to work thereafter. The employee was able to do some work remotely throughout the course of the claim, and the employer continued paying the employee’s full salary until 2017. At the initial hearing, the plaintiff argued he was not disabled until he started earning lower wages. Under N.C.G.S. § 97-29, an injured employee is only entitled to 500 weeks of benefits unless he qualifies for extended benefits. Melissa and Kyla argued the plaintiff was disabled on the date of his first surgery, which was approximately 219 weeks before the plaintiff’s alleged first date of disability in 2017. The Full Commission found in favor of Defendants, deciding that despite the fact that plaintiff was paid his full salary, his actual capacity to earn wages on the open job market was diminished, so he was disabled under N.C.G.S. § 97-2 beginning in 2013 when he underwent the first lumbar fusion surgery.
Considering plaintiff’s high compensation rate, the 219 weeks defendants will not have to pay disability benefits will be significant savings for the carrier in this case. Plaintiff may appeal, but regardless, these facts will create an issue of first impression before the appellate courts in North Carolina, which will be important to the jurisprudence of our State’s workers’ compensation law.