State News : North Carolina

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.

NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  

Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.

Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.

North Carolina



Written by: Lindsay Underwood

The Commission has recently issued decisions in the first extended benefits cases, in which plaintiffs are arguing entitlement to benefits past the 500-week cap provided in the 2011 reform. The cases have only been heard at the Deputy Commissioner level but give some additional insight into how they may be treated in the near future while we await inevitable appeals to the Full Commission and Court of Appeals. As a reminder, to obtain benefits beyond the 500-week cap, the injured employee must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. The employee is only eligible to request a hearing on this issue after 425 weeks have passed from the first date of disability. In the cases below, the decisions are split.

The first case, Milton Nobles v. North Carolina DHHS and CCMSI, was issued by Deputy Commissioner Robert Harris on January 25, 2021. The plaintiff in that case had no formal education but did have a high school diploma. He had work experience primarily as a health care technician. On June 26, 2011, he was working for a hospital and sustained injury while breaking up a fight. He experienced a significant beating, which ultimately resulted in headaches, PTSD, and depressive disorder. Deputy Commissioner Harris determined that was entitled to extended benefits beyond the 500 weeks. The Deputy found that plaintiff had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C. Gen. Stat. § 97-29(c), and he has proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.”  Thus, he was entitled to extended benefits. The plaintiff presented expert evidence that the plaintiff was totally disabled from any employment and the defendants presented medical evidence that the plaintiff was not disabled at all.  The case basically hinged on which medical expert was found to be most credible.

The next case, Mary Betts v. North Carolina Department of Health and Human Services and CCMSI, was issued on March 12, 2021, also by Deputy Commissioner Robert Harris. The plaintiff in that case graduated from high school and had CNA qualifications. She was a certified EMT, but her certifications had elapsed. Plaintiff worked as a health care technician and sustained her injury on August 12, 2011, while trying to restrain a combative patient. She sustained injury to the ankle which resulted in multiple surgeries. Plaintiff had sedentary work restrictions. Evidence showed that plaintiff remained involved with the Girls Scouts as a troop leader and summer camp director, volunteered with PTA, cut her own grass, and does crafts. The vocational expert testified that plaintiff’s condition prevented her from being employable. The Deputy found that plaintiff had proven by the preponderance of the evidence in view of the entire record that she “has sustained a total loss of wage-earning capacity” because of this compensable long-term ankle condition.  As such, Plaintiff was entitled to extended compensation.

The third case, Michelle Brown v. NC Department of Public Instruction/Surry County Schools and Sedgwick, was issued on May 4, 2021, by Deputy Commissioner Jesse Tillman, III. The plaintiff was working as a teacher’s assistant at a high school on February 24, 2012 when she sustained injury. Plaintiff worked for the County in multiple capacities in the past, including bus driver, substitute teacher, tennis coach, band director, and had experience as a CNA, truck dispatcher, cashier, food preparation, a line worker, and phlebotomist. Plaintiff had permanent sedentary work restrictions. Plaintiff testifies that she rides a motorcycle a few times during the summer, uses a riding lawnmower, can walk 1-2 miles without issue, bowls twice a week, cares for multiple animals, and actively swims. A vocational expert provided a labor market survey that showed the availability of jobs within plaintiff’s work restrictions. Plaintiff presented no evidence that she continued to suffer a total loss of wage-earning capacity. The Deputy found that plaintiff could at least work a part-time, sedentary job. Plaintiff’s claim for extended benefits was denied.

The last new case is Martin Strudivant v. North Carolina Department of Public Safety and CCMSI. The decision was issued by Deputy Commissioner Erin F. Taylor on May 5, 2021. Plaintiff sustained a compensable back injury on July 23, 2013. He was a high school graduate and had completed some post-graduate courses. He was certified to dive a forklift, had training in blueprint reading, and had CPR experience. Plaintiff had been on his church’s Board of Trustees since 2008. On the date of his injury, plaintiff was working transporting inmates. Four of plaintiff’s physicians testified plaintiff could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Defendants’ vocational expert also testified that plaintiff had capacity for work. It was determined that plaintiff could not show a “total loss” of wage-earning capacity and that the plaintiff’s wage earning capacity had not been destroyed. Thus, plaintiff could not show entitlement to compensation beyond the 500-week cap on benefits.

As you can see, the four decisions that have been issued to date have been a 50-50 split on entitlement to extended benefits. The cases are also very fact specific. What is clear from the decisions where entitlement to extended benefits has been denied is that the testimony from medical providers and a vocational rehabilitation specialist are necessary to support a finding that a plaintiff has wage earning capacity. Defendants should make sure to have good experts secured prior to the hearing, along with possible surveillance and a labor market survey. It is also helpful to have a complete picture of the plaintiff’s job history, educational background, and other activities outside of work or education, like the ability to exercise, do yardwork, or maintain positions on boards or as a volunteer. We will continue to monitor cases as they are issued at the Deputy level, and as they are appealed to the Full Commission and Court of Appeals.

If you have any questions in regards to these recent extended benefits decisions, feel free to reach out to a member of our workers’ compensation team.

Wanda Blanche Taylor confirmed by NC General Assembly to Serve as a Commissioner

Wanda Blanche Taylor was confirmed by the North Carolina General Assembly to serve as a Commissioner replacing former Commissioner and Chair of the Commission, Charlton Allen. Commissioner Taylor’s term begins immediately and runs through June 30, 2026.


Adrian A. Phillips Confirmed by NC General Assembly to Serve as a Commissioner

The General Assembly has confirmed Governor Roy Cooper’s appointment of Adrian A. Phillips to serve as a Commissioner on the North Carolina Industrial Commission. Phillips will begin serving her term upon taking her oath of office.


Mike Mackay Joins Commission as Director of Claims Administration

Mike MacKay was recently hired as the Director of Claims Administration at the IC. Attorney MacKay has extensive experience in Worker’s Compensation. Most recently, he was the managing attorney of the Worker’s Compensation Department at the Law Offices of James Scott Farrin and had previously represented defendants in Worker’s Compensation and personal injury cases at the law firm of Cranfill Summer.


Wes Saunders Appointed to Serve as Deputy Commissioner

Wes Saunders, most recently an Assistant Atty. Gen. at the Department of Justice handling Worker’s Compensation cases, was appointed as a Deputy Commissioner and is assigned to the Commission’s Raleigh office.


Celeste Harris Appointed to Serve as Deputy Commissioner

Celeste Harris was recently appointed as a Deputy Commissioner and assigned to the Winston-Salem regional office. Attorney Harris has represented injured individuals for over 30 years in the areas of Worker’s Compensation, personal injury and Social Security disability. She is also a North Carolina State Bar Board Certified Specialist in Worker’s Compensation law and a North Carolina Certified Mediator.


Bruce Hamilton is a Partner in Teague Campbell’s Raleigh office. For the past 30 years, his practice has focused exclusively on workers’ compensation defense.

Written by: Daniel Hayes

If a claimant in a workers’ compensation claim is a current Medicare beneficiary, the carrier has certain reporting obligations to the Centers for Medicare and Medicaid Services (CMS).  Under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA), the carrier’s Responsible Reporting Entity (RRE) must not only report any settlement as fulfillment of its Total Payment Obligation to Claimant (TPOC), but also whether the carrier has any obligation to provide medical compensation, or Ongoing Responsibility for Medicals (ORM).  The carrier’s ORM is indicated to CMS as either “yes” or “no,” reflecting whether responsibility for payment of medicals under the workers’ compensation claim is admitted or denied.  Once ORM is indicated as “yes,” CMS will assume any and all medicals arising out of the accident are the responsibility of the workers’ compensation carrier as primary payer, or debtor.  This ORM will trigger ongoing reviews for any Medicare conditional payments, with the Commercial Repayment Center (CRC) seeking reimbursement for these Medicare conditional payments, as necessary.

In North Carolina, there are two important statutes of limitation that may allow a workers’ compensation carrier to terminate ORM.  Under Section 97-25.1 of the North Carolina Workers’ Compensation Act, a two-year statute of limitations limits the claimant’s ability to seek additional medical care after the last payment of medical or indemnity compensation, as follows:

97-25.1. Limitation of duration of medical compensation.

The right to medical compensation shall terminate two years after the employer’s last payment of medical or indemnity compensation unless, prior to the expiration of this period, either:  (i) the employee files with the Commission an application for additional medical compensation which is thereafter approved by the Commission, or (ii) the Commission on its own motion orders additional medical compensation.  If the Commission determines that there is a substantial risk of the necessity of future medical compensation, the Commission shall provide by order for payment of future necessary medical compensation.

N.C. Gen. Stat. 97-25.1.  The carrier may use this two-year period from the last payment of medical or the last payment of indemnity, whichever is later, to know and calendar when ORM should be terminated.

Under Section 97-47, the legislature provided a separate two-year statute of limitations for pursuing a change of condition claim, as follows:

97-47. Change of condition; modification of award.

Upon its own motion or upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this Article, and shall immediately send to the parties a copy of the award.  No such review shall affect such award as regards any moneys paid but no such review shall be made after two years from the date of the last payment of compensation pursuant to an award under this Article, except that in cases in which only medical or other treatment bills are paid, no such review shall be made after 12 months from the date of the last payment of bills for medical or other treatment, paid pursuant to this Article.

N.C. Gen. Stat. 97-47 (emphasis added).  The carrier may also use this two-year period from the last payment of compensation under an award to know and calendar when ORM should be terminated.

Please note, as highlighted above, the statue also includes a one-year statute of limitations for seeking a change of condition in a medical only claim.  This would appear to allow the carrier to use a one-year period from the last payment of medical compensation to diary the termination of ORM in a medical only claim.

Practice Tip:  With regard to medical only claims, there is some inherent inconsistency in these statutes.  To our knowledge, there is no case that directly addresses the one-year change of condition period under Section 97-47 for a medical only claim.  It is unclear whether Sections 97-47 and 97-25.1 may conflict with the claimant’s right to seek additional medical care in a medical only claim under certain circumstances.

Have questions about ORM termination dates or other Medicare settlement solutions issues? Contact attorney Daniel Hayes!

Written by: Matthew Flammia

As we head into the summer season, there is no better time for a refresher on the calculation of average weekly wages for seasonal employees.

Definition of a Seasonal Employee

A seasonal employee is one whose primary employment is during “peak” times versus “slack” times.  When looking into this issue, it is important to remember a couple of guidelines that have been established by the North Carolina Courts:

    • First, an injured employee’s average weekly wage must nearly approximate the amount which the injured employee would be earning were it not for the injury, and the employment in which the employee was working at the time of the injury.
    • Second, the average weekly wage must be fair and just to both parties.
    • Finally, generally, an injured employee’s average weekly wage only may consider earnings from the employment in which the employee was injured.


Calculating Average Weekly Wage in North Carolina

In North Carolina, there are five methods for calculating an injured employee’s average weekly wage.

Method 1:  Is to be used when the employee worked for the employer 52 weeks prior to the date of injury and did not miss more than seven (7) consecutive days at one or more times.  The average weekly wage is simply calculated by dividing the total wages over 52 weeks by 52.

Method 2:  The employee worked for the employer 52 weeks prior to the date of injury, but missed seven (7) consecutive days at one or more times over those 52 weeks.  To calculate the average weekly wage under Method 2, calculate the total wages over 52 weeks and divide by the number of weeks remaining after subtracting one week for each seven-day period missed.

Method 3:  Is to be used when the employee worked for the employer less than 52 weeks prior to the date of injury.  To calculate the average weekly wage under Method 3, divide the total wages of the employee by the total number of weeks the employee worked for that employer.

Method 4:  Is to be used when the employee has worked for employer for only a short period of time or employment has been casual intermittent and it is impractical to use Method 1, 2 or 3.  To calculate the average weekly wage under Method 4, you would use a similar situated employee with the same grade paid in a similar position during the 52 weeks prior to the date of injury.

Method 5:  Is the “catch-all” provision that may only be used when the prior Methods produced an unjust result to either party.  There is no prescribed Method to calculate the average weekly wage under Method 5.

Generally, for seasonal workers, also sometimes categorized as temporary, intermittent or casual employees, we will look to Method 5 and use a hybrid approach to determine the average weekly wage.


Calculating Average Weekly Wage for Injured Seasonal Workers

For seasonal workers, the average weekly wage would be calculated by dividing the amount the employee earned by 52 weeks, no matter the length of employment. Using this method will account for the peak and down time during the season and rest of the year. Otherwise, if you only used the weeks that an employee worked or earned wages, the seasonal position would be turned into a full-time, year-round employment. Again, the Courts have held that the average weekly wage should be fair and just to both parties.

Around this time of year, North Carolina’s agriculture business tends to increase, which in turn leads to an increase in seasonal agricultural employees. One type of specialized seasonal agricultural employees are called H-2A workers. This program is administered by the North Carolina Growers Association (NCGA), and in fact, "approximately thirty percent (30%) of NC agricultural employees rely on the H-2A agricultural visa program to keep farming.” Calculating an H-2A’s average weekly wage should be performed in the same manner as seasonal employees, but there are some things to remember regarding these employees.

With any agriculture employee, if the employment contract provides compensation in lieu of wages (e.g. wage withholding for lodging) these allowances are deemed to be part of the employee’s earnings and should be included within the average weekly wage calculation. Generally, this is done by considering the fair market value of such lodging in the area and incorporating it into the employee’s earnings.

Finally, with agricultural employees, and commonly seen with H-2A workers, there may be a joint employment contract. H-2A workers in North Carolina are under a joint employment contract managed by the NCGA. These employees may work for any employer participating in the H-2A program with the NCGA, and therefore, the average weekly wages for the H-2A employees must consider the wages the employee earned from all of the joint employers that were part to the contract. This is not an exception to the general rule, but instead, reflects the relationship of the employee’s multi-employer contract.

If you have questions on average weekly wage for seasonal employees, reach out to Matt or another member of our Workers’ Comp team!

Written by: Tracey Jones

Occupational diseases that attack injured workers’ lungs are often filed with the North Carolina Industrial Commission. The most common lung diseases include: (1) silicosis; (2) asbestosis; (3) byssinosis; and (4) occupational asthma. Silicosis and asbestosis are specifically enumerated in N.C Gen. Stat. § 97-53. Byssinosis and occupational asthma are not specifically enumerated under this statute, but fall under the “catch-all” provision of the statute.


Silicosis is a progressive disease that belongs to a group of lung disorders called pneumoconiosis. Silicosis is marked by the formulation of lumps (nodules) and fibrous scar tissue in the lungs. It is the oldest known occupational lung disease and is caused by exposure to inhaled particles of silica, mostly from quartz in rock, sand, and similar substances.

The precise mechanism that triggers the development of silicosis is still unclear. What is known is that particles of silica dust get trapped in the tiny sacs (alveoli) in the lungs where air exchange takes place. Diagnosis of silicosis is based on a detailed occupational history, chest X-rays, bronchoscopy and lung function tests. There is currently no cure for silicosis; however, treatment is available to relieve symptoms, treat complications, and prevent respiratory infections.


Asbestosis is a chronic, progressive inflammation of the lungs. Asbestosis is a consequence of prolonged exposure to large quantities of asbestos, a material once widely used in construction, insulation, and manufacturing. Asbestosis is most common in men over 40 who have worked in asbestos-related occupations. Smokers or heavy drinkers have the greatest risk of developing the disease.

Occupational exposure is the most common cause of asbestosis. Screening of at-risk workers can reveal lung inflammation and lesions including fibrosis (scarring of the lungs), as well as restriction on pulmonary function testing (PFT). The scarring is usually in the lower lobes of the lungs and the scarring is normally bilateral, or seen in both lungs. Pleural plaques are also seen in workers exposed to asbestos, but these plaques are generally not compensable under the NC Workers’ Compensation Act as they do not cause breathing impairment.


Byssinosis is a chronic, asthma-like narrowing of the airways. It is also known as the “Brown Lung” disease. The disease results from inhaling particles of cotton, flax, hemp or jute. More than 800,000 workers in the cotton, flax and rope-making industries are exposed in the workplace to airborne particles that can cause byssinosis.

Occupational Asthma4

Occupational asthma is a form of lung disease in which the breathing passages shrink, swell or become inflamed or congested as a result of exposure to irritants in the workplace. At least 15% of all cases of asthma can be tied to exposure to: animal hair, dander, dust, fumes, insulation and packaging materials, mites and other insects, or paints. Occupational asthma is most likely to impact workers who have personal or family histories of allergies or asthma, or who are often required to handle or breathe dust or fumes created by especially irritating material.

Short-term exposure to low levels of one or more irritating substances can cause a very sensitive person to develop symptoms of occupational asthma. A person with occupational asthma may have one or more symptoms, including cough, shortness of breath, tightness in the chest, and wheezing. The most effective treatment for occupational asthma is to reduce or eliminate exposure to symptom-producing substances. It is also important to note that this disease can be reversible.

In Conclusion

Each of these diseases, the symptoms, and the treatment required are unique and should be treated as such. When a plaintiff files a workers’ compensation claim alleging an occupational disease lung claim with the North Carolina Industrial Commission, defendants must be prepared to proactively defend the claim with expert medical and vocational assessments.

Feel free to reach out to Tracey Jones or another member of our experienced workers’ compensation team if you have additional questions or wish to discuss these unique claims in more detail.



1 Information referenced in this section was taken from http://medical-
2 Information referenced in this section was taken from http://medical-
3 Information referenced in this section was taken from http://medical-
4 Information referenced in this section was taken from http://medical-

Written by: Tracey Jones

The tripartite relationship refers to the relationship between the insurer, the insured, and the attorney arising out of the insurance contract.  Each party to the relationship has their own respective duties and roles, which will be discussed in turn.  In litigation, it is critical for each member of the tripartite relationship to understand its role and responsibilities.  .

  • Insurer: The insurer’s role includes the duty to defend, and right to select defense of the claim, control the defense of the claim, and negotiate and settle the claim (if provided for).

*The role between the insured and the insurer is defined by the insurance contract, with any ambiguities being interpreted by the courts in favor of the insured.

  • Insured: The insured’s role includes the duties to give timely notice of the claim and cooperate with the defense of the claim.
  • Attorney: The attorney’s role is defined by the North Carolina Revised Rules of Professional Conduct.[1] The Rules govern the attorney-client relationship, and create requirements that a defense attorney must follow regarding competence, confidentiality, conflicts of interest, and receiving fees from persons other than the client.

The tripartite relationship is formed with the primary objective of achieving a successful result in litigation.  This relationship, while seemingly simple on the surface, can create numerous, and often complex questions depending on the peripheral goals and interests of the parties, which are not always mutual. Understanding the roles and each role’s responsibility is critical throughout the claims process.

If you have questions about the tripartite relationship or other workers’ compensation topics, reach out to Teague Campbell’s team of workers’ compensation attorneys.



[1] N.C. Admin. Code, Tit.27, Ch2, Canons I-VIII.

Written by: Luke West

As 2020 unfolded and the COVID-19 pandemic set in across the world, it altered our way of life. In addition to closing schools and borders, the U.S. economy essentially shut down. Some businesses and industries were better equipped than others to handle the economic and public health fallout, and directed employees to work from home indefinitely. However, millions of workers, who provide services critical to the functioning of society, did not have the option to work from home.

According to the National Conference of State Legislators, these workers, who have been labeled “frontline” or “essential,” were in industries such as food and agriculture, health care, emergency services, transportation and delivery, energy, water and wastewater management, and critical manufacturing. These workers were, and still are, reporting to work every day.

COVID-19 has proved to be something of a moving target with the lockdown measures, new variants, and impact of vaccinations. The question of whether workers’ compensation covers communicable diseases, such as COVID-19, looms large. For carriers, employers, and workers’ compensation practitioners, the pandemic also begs other questions, such as:Are all communicable diseases the same? What are the critical factors for determining compensability of communicable diseases? Does the designation of an epidemic or pandemic change the way statutes are interpreted? Is there a way to reduce risk from these relatively common yet silent threats?

Are all communicable diseases the same?

Yes and no.

Communicable diseases are also known as infectious or transmissible diseases. The Wisconsin Department of Health reports that communicable diseases result from the infection and growth of pathogenic (disease causing) biologic agents in a human or other animal host. These types of diseases include Hepatitis A, B, and C, HIV, measles, salmonella, and COVID-19. Some communicable diseases have been found to be compensable, such as serum hepatitis in a lab worker.Booker v. Duke.

According to the Centers for Disease Control and Prevention (CDC), communicable diseases are spread through direct contact with a sick person, breathing in airborne viruses and bacteria, contact with blood and bodily fluids, contact with a contaminated surface, or insect or animal bites. All communicable diseases are not the same, and COVID-19 is a particularly insidious disease with specific peculiarities that we are just beginning to understand. The easy transmission and resulting widespread nature of COVID-19 creates increased chances of contracting the disease in public when compared to other communicable diseases. 

Person-to-person spread is most likely to occur during close contact with infected persons and is mainly effectuated via droplets of respiratory secretions produced when an infected person cough or sneezes. It is also widely believed that COVID-19 can be transmitted by infected people who are asymptomatic. According to the Occupational Safety and Health Administration (OSHA), jobs that require sustained or frequent close contact with co-workers, customers, and/or members of the public who may be infected places them at an increased risk of contracting the disease.

By that standard, certain essential workers may be at an increased risk of contracting COVID-19 by virtue of their employment. However, OSHA’s guidance on control and prevention of COVID-19 also states that most types of workers have a similar risk of contracting COVID-19 as the general public. In fact, a recent study[1] suggests healthcare professionals actually have a greater risk of contracting the virus outside of the workplace, rather than at work.  This may be due to the strict prevention controls present in the healthcare setting. 

The problem of tracing the source of a COVID-19 infection is an important emerging issue in the workers’ compensation arena, especially considering the evolving medical guidance regarding prevention, the various vaccines available, and the effect on community spread. All of these issues have a direct bearing on whether a particular COVID-19 infection is compensable.

Does the designation of an epidemic or pandemic change the way statutes are interpreted?

There have been questions around whether the designation of COVID-19 as a worldwide pandemic puts it in a completely different category than how communicable diseases are typically defined within legal statutes.

The short answer is no.

There is no cannon of state statutory construction or interpretation that kicks in once a pandemic is declared. While we have seen in several states, the designation of a pandemic has had an impact on the back end by prompting some state legislatures to introduce bills modifying laws or issuing special directives making it easier for frontline or essential workers to have their COVID-19 claim covered under the workers’ compensation system.

Within North Carolina, a legislative push to streamline COVID-19 workers’ compensation claims for specific categories of essential workers did not cross the goal line. Last year, House Bills 1056 and 1057 proposed adding a presumption of workplace exposure and compensability for COVID-19 (and other pandemic) infections in a number of specific industries such as police, healthcare, fire, and anyone designated essential.  However these bills appear to have stalled in Committee. As denied COVID-19 workers’ compensation claims in North Carolina reach the Industrial Commission, it will be essential to monitor the opinions and tailor your business operations and legal practice with respect to COVID-19 accordingly.

What are the critical factors for determining compensability of communicable diseases?

In most states, workers’ compensation injuries fall into one of two categories:

(1) Accidental injuries that can be traced to a specific time, place, and work-related cause (an injury by accident); and

(2) Occupational diseases to which the worker was exposed because of their employment.

The very nature of communicable diseases such as COVID-19 makes it difficult to fit particularly well into either category. In a state-by-state survey of COVID-19 compensability compiled by the National Workers’ Compensation Defense Network (NWCDN), Mimi Metzger of Ritsema & Lyon, LLC, reported that a survey of Colorado case law revealed claimants would typically bring communicable disease claims under both injury by accident and occupational disease categories. However, in most jurisdictions, Colorado included, it appears a potential claimant would have a better chance of proving compensability by pursuing an occupational disease claim. In particular, because COVID-19 is spread from person to person, rather than from exposure to some fixed aspect of the workspace, such as the presence of asbestos, satisfying the requisite causation element may be a difficult proposition.

In North Carolina, the burden for proving the causation requirement for occupational disease claims falls under the  so-called “increased risk” rule (also the majority rule), where the employee must prove the risk of contracting the disease was inherent in the employment and that the employment presented an increased risk of contraction when compared to the general public.

Under this category, occupational diseases are not generally compensable if the risk of contracting the illness is common to the general public. If the disease is not the result of a risk specific to the workplace, there is a chance it would not compensable. The problem for Workers’ Compensation Boards, the Industrial Commission, and practitioners is that communicable diseases, such as COVID-19, are spread in the community and something to which the general public is easily exposed. How does one prove when, where, or how they contracted a virus when there is community spread? How does one defend against these claims and seek to prove a negative:that the worker did not contract the virus at work?

In North Carolina, an increased risk state, a COVID-19 infection would generally not be considered compensable because you would arguably be just as likely to contract the disease out in public as you would be at your job. That said, occupational disease claims are extremely fact-specific, so an important factor to consider is whether the job in question regularly exposes the worker to COVID-19 positive persons, such as certain workers in the healthcare field.

The difficulty in proving exposure can pose an issue for essential workers and others who are regularly exposed to the general public in the course and scope of their employment, but who are also human beings outside of work who, despite social distancing, mask regulations and even vaccines, could just as easily be exposed to COVID-19 outside of work. OSHA has tacitly recognized this proposition in its COVID-19 guidance by acknowledging that jobs requiring close contact with others may place those workers at a higher risk of contracting COVID-19 and that occupations which do not require that level of close contact may place those workers at a risk level akin to the general public. The fundamentally altered landscape in the United States during intense lockdown measures seems to cut against a defense that a worker could have just as easily contracted the disease by being out in public. However, as states begin to re-open, the likelihood of establishing increased risk at work when compared to the general public seems to decline. 

The following are things to consider when determining whether there will be enough of a causal connection between employment and the contraction of COVID-19:

(1) The employee is a healthcare worker or other frontline worker who regularly comes into contact with COVID-19 positive persons;

(2) Evidence the employee was in direct contact with a COVID-19 positive person at work;

(3) Reliable expert evidence that their employment placed them at a greater risk of contracting the disease when compared to the general public;

(4) A plausible source of contraction at the workplace and incubation period that fits within the infection timeline; and/or

(5) A lack of equally plausible infection sources outside of the workplace. This would also require the demonstration of additional factors, such as:

·         How many people the employee was in close contact with on an average day for 14 days prior to diagnosis;

·         Whether the employee was provided with safety precautions, such as PPE, at work;

·         Whether the employee used PPE outside of work;

·         Hand sanitizing/washing stations at work;

·         Hand sanitizing/washing practices outside of work;

·         The extent to which the employee was or was not engaging in social distancing; and,

·         Other measures that were present both inside and outside the workplace to reduce the risk of contracting the disease.

At this time, there are still questions within North Carolina on how COVID-19 compensability claims will be addressed by the Industrial Commission and the appellate courts. It is critical for an employer to be aware the employee’s burden of proof in regards to increased risk and to take steps to mitigate that risk to the extent practicable.

Now that we have an idea of how COVID-19 workers’ compensation claims are handled in North Carolina, let’s look at some of the steps that an employer can take to reduce their risk of an employee contracting COVID-19 while on the job.

Ways of Limiting Workers’ Compensation Risk for COVID-19

On an almost weekly basis, new research is published on the long-term health outcomes for COVID-19 survivors. An increasing body of research suggests that more serious long-term complications can include inflammation of the heart muscle (cardiovascular disease), lung function abnormalities (respiratory disease), acute kidney injury (renal disease), sensory problems and concentration/memory difficulties (neurological disease), and even psychiatric complications.  While the pandemic data is starting to show some encouraging trends (at least, domestically) in terms of infection and death rates, the need for realistic exposure mitigation strategies should remain a priority for employers.

OSHA initially developed guidance for organizing worker exposure risk into various levels of risk and has provided specific guidance for each level in their “Guidance on Preparing Workplaces for COVID-19,” which is available on their website. (OSHA No. 3990-03, 2020). Additionally, the CDC’s National Institute for Occupational Safety and Health (NIOSH) provides guidance in the form of factsheets directed toward specific industries such as airports, banks, construction, critical infrastructure, manufacturing, meat and poultry processing, and transit workers. This information is available on the CDC’s website. These are good starting points for businesses looking to limit the risk of COVID-19 exposure and potential workers’ compensation claims.

Some general guidance from OSHA for employers seeking to reduce the risk of COVID-19 exposure includes:

·         Promptly investigate any COVID-19 claim and take immediate steps to protect the infected employee and remainder of the workforce;

·         Enhance ventilation by increasing air exchanges in rooms;

·         Modify workstation layouts to ensure all employees remain six feet apart;

·         Close common areas where employees are likely to congregate;

·         Increase the frequency of cleaning frequently touched surfaces;

·         Encourage sick employees to stay home;

·         Send sick employees home immediately;

·         Follow CDC-recommended guidance;

·         For non-healthcare workers, the CDC recommends cloth face coverings in public and where social distancing measures are difficult to maintain;

·         The EEOC indicated that employers could require employees to wear PPE to reduce the transmission of COVID-19, though OSHA leaves the determination of whether to require masks to the employer based on its assessment of risk factors to employees, recommending PPE for anyone in the medium or greater risk groups; and

·         Educate employees about how they can reduce the spread of COVID-19.

OSHA has continued to update their recommendations for mitigating the risk of workplace exposure.  To the extent practicable, employers are encouraged to:

·         Develop an infectious disease preparedness plan;

·         Implement basic infection prevention measures, detailed above; and

·         Develop policies and procedures for prompt identification and isolation of sick employees, if appropriate;

As we continue learning more about this disease, and as more claims work their way through the state systems, we should be able to better assess the relevant workers’ compensation risks. In the meantime, the compensability analysis for COVID-19 in many states, including North Carolina, will continue to be fact-specific and will vary depending upon what is going on in the state in terms of rate of infection, the type of work being performed, comorbid health conditions of the particular infected employee, and the impact of vaccinations. 

If you have questions or wish to discuss this further, please contact Heather Baker, Luke West, or your Teague Campbell workers’ compensation attorney.

This article, in its original format, appeared in the 2020 Larson Series, “Workers’ Compensation Emerging Issues Analysis: COVID-19 in the Workplace”.

Written by Tracey Jones

Workers’ compensation claims based on alleged psychological and mental impairments, including anxiety disorders, depression, and/or post-traumatic stress disorder (PTSD), are becoming increasingly prevalent, and understanding the differences between them is key in being able to adequately defend against them.

Psychological Claims Resulting From Physical Injury

When psychological claims are being asserted as the direct result of a physical injury, the psychological component of the claim can be hard to defend against.  

Typically, Courts will find physical injuries that result in chronic pain with associated depression and anxiety to be compensable without strong expert testimony refuting the mental component of the claim.Powell v. O’Reilly Auto Parts, Inc., 259 N.C. App. 251, 812 S.E.2d 408 (2018) (Unpublished). InPowell, the Full Commission determined that plaintiff’s pre-existing psychological conditions were compensable aggravations from her fall because even though she didn’t tell anyone about it before her accident, she was still credible, and the treating doctors’ testimony was sufficiently specific, and therefore competent, on causation.

When trying to combat a psychological component of a physical injury claim, there are three best practices to keep in mind:

1.       It is imperative to hire an expert to perform an evaluation of plaintiff. This expert should use diagnostic neuropsychological testing to support his or her opinions about the lack of causation between plaintiff’s mental disabilities and his or her physical injuries.

2.       Surveillance can be a very useful tool when trying to defend against these types of claims. Multiple days of surveillance will probably be necessary in order to combat the assertion that on “the day in question” plaintiff was having a “good day.”Kirby v. Mission Hospital, 848 S.E.2d 754, 2020 WL 6140500 (2020) (Unpublished).

3.       Finally, even though the psychological component usually arises later and does not present itself immediately after the injury by accident, we strongly encourage carriers to include questions in the recorded statement regarding the name of the plaintiff’s primary care physician as well as whether the plaintiff has previously suffered from a mental illness and received treatment for the same, including anxiety and depression. Primary care physician records can offer a wealth of knowledge about past problems and treatment that sometimes get overlooked or simply forgotten by a plaintiff. 

Psychological claims resulting from physical injury are typically the most difficult to defend in North Carolina, and are found compensable more often than psychological claims where there is no physical injury present. Good investigative practices at the outset of a physical injury claim are critical to the defense of psychological assertions down the road. A mental health expert and other investigative means should be utilized strategically to ensure the best possible chance of prevailing. 

Non-Physical Injury By Accident Psychological Claims

Over the last several years, the increase in non-physical psychological workers’ compensation claims matches an overall increase in anxiety and depression in members of the general public. Nevertheless, true psychological claims, without a precipitating physical component, are much harder for a plaintiff to prove. The North Carolina Workers’ Compensation Act allows for recovery of psychological and mental disorders which are proven to be an “occupational disease” or the result of a compensable “injury by accident.” There are two ways to prove that a “mental claim” is compensable under the Workers’ Compensation Act:

1.       Claiming that a discrete stressful event resulted in an injury by accident; and

2.       Asserting that the claimant suffers from a stress-related occupational disease under N.C.G.S. § 97-53(13).

The North Carolina Workers’ Compensation Act defines an “accident’ as an unlooked for and untoward event which is not expected or designed by the injured employee. Davis v. Raleigh Rental Ctr., 58 N.C. App. 113, 116, 292 S.E.2d 763, 766 (1982). The essence of an accident is its unusualness and unexpectedness. Id. 

The injury by accident theory does not appear as frequently in appellate cases as the occupational disease theory with respect to mental and psychological illnesses. In any event, like the cases brought under the occupational disease theory, the cases brought as injuries by accident have had varying outcomes. 

Whether a psychological impairment should be considered a compensable injury by accident depends heavily on the underlying facts of each specific case.The “incident” that leads to the alleged psychological impairment must be unusual and not part of the employee’s normal work routine.

For example, Courts have held that a performance review, or a routine, problem-solving meeting is an ordinary incidence of employment, and a nervous breakdown and stress-induced anxiety following thereafter does not constitute an injury by accident.Pitillo v. N.C. Dep’t of Envtl. Health and Natural Res., 151 N.C. App. 641, 566 S.E.2d 807 (2002). On the other hand, being falsely accused of stealing from the company was considered unusual and rose to level of an accident. SeeBursell v. Gen. Elec. Co., 172 N.C. App. 73, 616 S.E.2d 342 (2005). 

These claims are also subject to an analysis of pre-existing conditions and often require expert medical testimony. Expert witnesses must give an opinion to a reasonable degree of medical certainty that the medical condition and accident are related. It is not sufficient to say that just because the medical condition was absent before the injury, but was present thereafter, that the two are linked. 

Non-physical psychological workers’ compensation claims are not as straightforward as psychological claims directly resulting from a physical injury. The plaintiff still has the burden of proof, and use of expert witness testimony can assist in determining whether the psychological impairment should be considered a compensable injury.

Non-Physical Occupational Disease Psychological Claims

As stated earlier, a plaintiff can recover for psychological or mental claims under an occupational disease theory. Occupational disease claims are governed by N.C.G.S. § 97-53. Although anxiety disorders, depression, and PTSD are not specifically enumerated in this statutory list of compensable occupational diseases, they are included in the “catch-all” provision of subsection 13.Smith-Price v. Charter Pines Behavioral Ctr., 160 N.C. App. 161, 584 S.E.2d 881 (2003) (holding that post-traumatic stress disorder is a compensable occupational disease).

The North Carolina Supreme Court in Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983) explained what is required to prove an “occupational disease.” The three elements are: 

1.       The disease must be characteristic of, and peculiar to, the plaintiff’s particular trade, occupation or employment;

2.       The disease must not be an ordinary disease of life to which the public is equally exposed outside the employment; and

3.       There must be proof of causation (proof of a causal connection between the disease and the employment). “[T]he first two elements are satisfied if, as a matter of fact, the employment exposed the worker to a greater risk of contracting the disease than the public generally.”

North Carolina Appellate Courts have both upheld and rejected mental and psychological illness claims brought under an “occupational disease” theory of recovery. These cases typically turn on whether the plaintiff can show that his job responsibilities placed him at an increased risk of contracting the mental or psychological illness than the general public. Even if the plaintiff is successful in showing that his job placed him at an increased risk of developing the disease over the general public, he still has the burden of proving a causal nexus between the mental or psychological condition and his employment. Rutledge, 308 N.C. at 94, 301 S.E.2d at 365. 

Often times the plaintiff has a pre-existing mental or psychological condition. It is imperative that prior medical history be obtained and investigated early on in a case. Although the Act allows for recovery when a pre-existing condition is materially aggravated or accelerated by one’s employment, it is crucial to determine whether it is a new or different condition which the plaintiff is experiencing rather than a mere continuation of a pre-existing condition. Anderson v. Nw. Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951) (holding that in North Carolina, an injury arising out of and in the course of employment which materially accelerates or aggravates a pre-existing disease or infirmity is compensable).

In addition to establishing that there was an aggravation or acceleration of his pre-existing condition, the plaintiff must also “show that the employment placed him at a greater risk for contracting the condition [than the general public], even where the condition may have been aggravated but not originally caused by the [claimant’s] employment.”Chambers v. Transit Management, 360 N.C. 609, 613, 636 S.E.2d 553, 555 (2006).

Unless the plaintiff is in the public sector and provides aid to the community, such as a law enforcement officer, EMS worker, firefighter, or some other community servant, most jobs do not place individuals at an increased risk of developing psychological claims. Bad bosses, poor work reviews and severe and extreme work related stress and pressure have historically not been found compensable.Day v. Travelers Insurance Co., 845 S.E.2d 208, 2020 WL 4462171, (2020) (holding that an adjuster’s job, while very stressful, does not place her at an increased risk of developing depression and anxiety as opposed to the public generally).

Most of these claims are decided on the underlying facts and each must be analyzed on a case by case basis. Regardless, the plaintiff retains the burden of proof. He must prove every element of the claim, whether an accident or an occupational disease, and meet the criteria for the same under the North Carolina Workers’ Compensation Act to receive an award of benefits. 

Claims Handling Tips for Psychological Workers’ Compensation Claims

The burden of proof for a psychological workers’ compensation claim lies with the plaintiff. However, to prepare a proper defense, there are some key claims handling tips to take into account, which include:

1.       Ensure a thorough recorded statement is taken as soon as notification of a claim is received. The recorded statement should:

·         Address the plaintiff’s regular, normal job duties;

·         Identify anything new or unusual with the plaintiff’s job and the length of time or duration of the new or unusual activity;

·         Identify the plaintiff’s prior medical history including whether he or she has ever treated for depression, anxiety, or any other psychological illness. If so, pin down the exact illness diagnosed; the type and frequency of psychiatric treatment received before and after; any difference in the plaintiff’s complaints or intensity level with regards to his psychological illness; and, the name of the medical professional providing treatment;

·         Always request the contact information for the plaintiff’s primary care physician so you can obtain the records before accepting the claim;

·         Identify the plaintiff’s supervisor and the co-workers plaintiff interacted with on a daily basis (so that interviews and fact investigation can occur with these individuals); and,

·         Identify the plaintiff’s hobbies and activities (if plaintiff is going to baseball games and/or concerts on a regular basis then it is unlikely that he or she has an inability to function in society or at work).

2.       Conduct surveillance, if warranted, to investigate the plaintiff’s physical activities and demeanor outside of his treating relationship with medical providers.

3.       Perform extensive employer interviews in the early stages of the case. These interviews should also involve the plaintiff’s co-workers so that any pre-existing problems or complaints can be identified as compared to the new complaints that may have arisen.

4.       Retain a psychological professional to analyze the issues, the type of job the plaintiff performs, and elicit opinions on causation. 

5.       Enroll the plaintiff in counseling instead of simply approving medications for psychological or mental illnesses. A plaintiff’s depression may drastically improve with counseling on a regular basis. Treatment notes often provide helpful information for the claim as well.

6.       Control the claim by directing the plaintiff’s medical care. Make sure that only an approved, treating physician provides medications instead of allowing the plaintiff to go to his primary care physician for additional care for the same condition. 

By engaging in these best practices early, during the investigative phase of the claim, a stronger defense can be prepared against psychological workers’ compensation claims when litigation does ensue.

If you have questions or wish to discuss this further, please contact Tracey Jones or your Teague Campbell workers’ compensation attorney.

Written by: John Tomei

Are all workers who perform services for an employer, including owner, partner, member, or executive officer, covered as “employees” under the North Carolina Workers’ Compensation Act to the extent they may be seeking workers’ compensation benefits? 

How are those “employees,” if they are an owner, partner, member, or executive officer, included in or excluded from a standard Workers’ Compensation and Employers Liability Insurance Policy in North Carolina? 

The answer to the first question is covered by the provisions of the Act itself and, more specifically, its definition of an “Employee” under N.C.G.S. § 97-2(2). This issue often arises in the context of sole proprietors, partners of a business, or members of a limited liability company (LLC), as well as executive officers of a corporation (including nonprofit corporations), who may be seeking workers’ compensation benefits for themselves following an injury. Thus, a threshold determination is the nature of the employer’s organization and its treatment under the Act. The answer to the second question is addressed by the language in the policy provisions.

How owners, partners, members, and executive officers are covered under the Workers’ Compensation Act:


Sole Proprietors, Partners, and Members of Limited Liability Companies (LLC)

N.C.G.S. § 92-2(2) provides, in part, the following:

Any sole proprietor or partner of a business or any member of a limited liability company may elect to be included as an employee under the workers’ compensation coverage of such business if he or she is actively engaged in the operation of the business and if the insurer is notified of his election to be so included. Any such sole proprietor or partner or member of a limited liability company shall, upon such election, be entitled to employee benefits and be subject to employee responsibilities prescribed in this Article.

What this means for employers is that under the Act, a sole proprietor, partner of a business, or any member of a limited liability company (LLC) is presumed to be excluded from coverage, unless:

  • He or she is actively engaged in the operation of the business; and
  • The insurer is affirmatively notified of his or her election to be included.

As with many situations in the workers’ compensation and insurance coverage worlds, submission of proper documentation to the carrier is crucial.

For-Profit Corporations

N.C.G.S. § 97-2(2) further provides, in part, the following:

Except as otherwise provided herein, every executive officer elected or appointed and empowered in accordance with the charter and bylaws of a corporation shall be considered as an employee of such corporation under this Article. Any such executive officer of a corporation may, notwithstanding any other provision of this Article, be exempt from the coverage of the corporation’s insurance contract by such corporation’s specifically excluding such executive officer in such contract of insurance, and the exclusion to remove such executive officer from the coverage shall continue for the period such contract of insurance is in effect, and during such period such executive officers thus exempted from the coverage of the insurance contract shall not be employees of such corporation under this Article.

North Carolina case law has held that, where a corporate employer with less than the minimum number of employees to be subject to the Act procures a policy of workers’ compensation insurance, such employer is presumed to have accepted the provisions of the Act. Consequently, that policy covers its executive officers notwithstanding the premium on the policy being based on the compensation of a single non-executive employee and the parties intending to cover that employee only, unless notice of non-acceptance by the executive officer or officers is duly filed with the Industrial Commission. Laughridge v. South Mountain Pulpwood Co., 266 N.C. 769, 147 S.E. 2d 213 (1966).

For corporate executives, this portion of the Act dictates that, generally, executive officers of a corporation are considered to be employees of such corporations for workers’ compensation purposes, but they may specifically exempt and exclude themselves from workers’ compensation coverage. Keeping that in mind, for that exemption to be effective, they must notify the carrier in writing that they are exempting themselves from coverage.

Similar to the requirements for sole proprietors, partners of a business, or members of a limited liability company, submission of necessary documentation by for-profit corporations to the carrier is vital.

Nonprofit Organizations

With regard to nonprofit corporations, N.C.G.S. § 97-2(2) further provides the following:

“Employee” shall not include any person elected or appointed and empowered as an executive officer, director, or committee member under the charter, articles, or bylaws of a nonprofit corporation subject to Chapter 47A, 47C, 47F, 55A, or 59B of the General Statutes, or any organization exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code, who performs only voluntary service for the nonprofit corporation, provided that the person receives no remuneration for the voluntary service other than reasonable reimbursement for expenses incurred in connection with the voluntary service.

When a nonprofit corporation, as described herein, employs one or more persons who do receive remuneration other than reasonable reimbursement for expenses, then any volunteer officers, directors, or committee members excluded from the definition of “employee” by operation of this paragraph shall be counted as employees for the sole purpose of determining the number of persons regularly employed in the same business or establishment pursuant to G.S. § 97-2(1). Other than for the limited purpose of determining the number of persons regularly employed in the same business or establishment, such volunteer nonprofit officers, directors, or committee members shall not be “employees” under the Act. Nothing herein shall prohibit a nonprofit corporation as described G.S. § 97-2 herein from voluntarily electing to provide for workers’ compensation benefits in the manner provided in G.S. § 97-93 for volunteer officers, directors, or committee members excluded from the definition of “employee” by operation of this paragraph.

Where does the Act leave us with regard to nonprofit corporations? For those nonprofit corporations which fall under specified North Carolina General Statutes or which are otherwise exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code, their executive officers, directors or committee members are not considered to be “Employees” under the Act. However, those persons must be volunteers and cannot receive remuneration for the services they provide, other than reasonable reimbursement for expenses incurred in connection with their voluntary service.

If, on the other hand, an organization employs one or more persons who do receive remuneration, then any volunteer officers, directors or committee members, are nonetheless counted as employees for the sole purpose of determining the number of persons regularly employed so as to be subject to the Act under N.C.G.S. § 97-2(1).

Note to non-profit employers: The Act does not prohibit a nonprofit corporation from voluntarily electing to provide workers’ compensation benefits for its volunteer officers, directors or committee members who would otherwise be excluded as “Employees” under the Act.

How are these types of employees included in or excluded from a standard Workers’ Compensation and Employers Liability Insurance Policy in North Carolina? 

Coverage as “employees” under the standard Workers’ Compensation and Employers Liability Policy in North Carolina

The standard Workers’ Compensation and Employers Liability Insurance Policy in North Carolina does not specifically address the question of whether or how sole proprietors, partners or corporate officers are included or excluded as “employees” under a workers’ compensation policy.

Nevertheless, the Policy specifically states, under “H. Statutory Provisions,” that “this insurance conforms to the parts of the workers’ compensation law that apply to… [b]enefits payable by this insurance…“ Further, the Policy provides that “[t]erms of this insurance that conflict with the workers’ compensation law are changed by the statement to conform to that law.”

As a result of these conformation clauses in the Policy, the provisions of the Act are included in the Policy as to its treatment of sole proprietors, partners and corporate officers as “employees.” Consistent with that inclusion, the standard Workers’ Compensation and Employers Liability Insurance Policy in North Carolina has an Endorsement which provides for the exclusion of partners, officers and others from coverage as employees of an insured. Similarly, another Endorsement provides for the inclusion of sole proprietors, partners, officers and others as employees of an insured.

These Endorsements, along with the standard North Carolina Workers Compensation and Employers Liability Policy, can be found at the North Carolina Rate Bureau’s website.

To Put It All Together

North Carolina workers’ compensation policy provisions are consistent with the Act as to sole proprietors, partners, corporate officers, and others, and their inclusion or exclusion from coverage as “employees” of their insured entities under a policy. Even so, these persons need to remember to abide by the Act’s requirements as to their inclusion or exclusion as “employees,” including the submission of proper documentation as such, when applying for and receiving a policy of workers’ compensation coverage in North Carolina.

Jumping through these necessary hoops will then enable a carrier to include the proper Endorsement(s) when a policy is issued, and avoid any later disputes between a carrier and insured.

If you have questions about whether someone who provides services to an employer is an “employee” covered under the Workers’ Compensation Act, contact John Tomei or any member of the firm’s Workers’ Compensation or Insurance Coverage teams.

Written by: Lindsay Underwood

A decision has been an issued by the North Carolina Supreme Court in a case that we have been following for quite a few years: Griffin v. Absolute Fire Control, Inc. The Supreme Court affirmed the ruling from the Court of Appeals that was issued in January 2020. The case is now remanded back to the Full Commission. Though we will have to wait and see what the Full Commission does, it is not a good disability decision for defendants.

For some factual history, Plaintiff worked as a pipe fitter and injured his back in 2014. He returned to work a month later with restrictions.  His pre-injury job was outside his restrictions, so he was offered, and accepted, work in the fabrication shop. Plaintiff was ultimately assigned permanent restrictions. In 2016, Plaintiff underwent non-work related heart surgery and asked to return to work in the field, stating that walking would improve his back condition. Defendants allowed Plaintiff to return to work in the field as a helper. Plaintiff later requested a hearing seeking a determination on the suitability of the job. The Deputy Commissioner concluded Plaintiff was not disabled. The Full Commission determined the fabrication shop position was suitable because it was a real, actual position. The field helper position was never offered as suitable employment, and was classified as an accommodation offered to Plaintiff at his request. Therefore, Plaintiff failed to prove disability. Plaintiff appealed.

At the Court of Appeals level, Plaintiff made a futility argument. Under Russell, an employee can meet his burden of proving disability by showing he is capable of some work, but it would be futile to look for other work because of pre-existing conditions like age or lack of education. The Commission made factual findings that Plaintiff failed to show it would be futile. The Court of Appeals noted the Full Commission found that Plaintiff was 49 years old, had a 9th grade education, and worked as a pipe-fitter. Plaintiff had a permanent 20-pound lifting restriction, would sometimes need to leave work because of pain, and reached MMI in 2017. The Court of Appeals did not see how the Full Commission could conclude Plaintiff presented no evidence on futility given its findings were similar to other cases where courts supported futility.  These factors included age, education, work experience, and restrictions.

The Court also disagreed with the suitable employment analysis. “Make work” positions are those that have been altered such that they are not ordinarily available on the job market. The Court reasoned that, whether a position existed with employers, beyond a given employer in a specific case, is an essential part of the make work analysis, as the Act does not allow employers to avoid paying benefits by offering a job that does not exist outside of that employers’ business.

Because the Commission’s findings failed to address whether the job was available with employers other than Defendant-Employer, the Commission’s assessment was flawed.  Additionally, the Commission’s finding that “Defendant’s unique hiring practice of hiring based upon word of mouth and personal recommendations” meant the position was “available to individuals in the marketplace,” exemplified this shortcoming in the Court’s view and defined the marketplace based on the employer’s practices.

Now that this decision has been affirmed by the Supreme Court, the case will go back to the Full Commission for further review on remand. Consequently, we will need to see what the Full Commission does on remand before knowing the full impact of the Griffin decision. However, we anticipate that it will be argued that even where a plaintiff is working with his pre-injury employer, and there are jobs available to him with the pre-injury employer, the plaintiff could still prove disability if there is no evidence that the offered position is available in the general marketplace. We will continue to monitor this case while it is on remand to the Full Commission, but it is worth noting that there are still facts which are unique to this case that may allow this case to be distinguished going forward. For example, the employer in this case had a unique hiring practice, and the higher courts did not look favorably on this. Further, this case does not eliminate other “futility” factors that need to be present like age, education level, and work experience, to demonstrate that returning to work is futile

Plaintiffs routinely appear to rely on the futility argument for proving disability when they do not conduct their own reasonable job search. Defendants will need to analyze cases with that fact pattern very carefully. If the plaintiff has work restrictions, but has done no job search at all, be prepared to defend a disability argument based upon futility.