State News : North Carolina

It remains a popular preference for plaintiffs and plaintiffs’ attorneys to attend mediation virtually despite the default rule at the Commission being in-person mediations. From the defense counsel perspective, virtual mediations can prove more difficult than in-person mediations for several reasons. First, it is easier to engage in small talk before mediation when the parties are in-person, and that advantage can make plaintiff more comfortable with the process. Additionally, it is easier to read opposing counsel’s and plaintiff’s body language when attending mediation in-person. Whether mediations are in-person or virtual, they are an important step in the litigation process. When virtual mediation is the only choice, these five steps can help you prepare effectively:

1.      Over prepare.

We all know that preparation can be the difference between a successful mediation and an unsuccessful mediation. It is important to not only know the basic facts in a case, but also to create a story. Creating a story out of the facts means identifying the theme of the case, highlighting key facts and singling out the issues you are trying to resolve. If the defense is not familiar with the case facts and issues it inevitably upsets plaintiff and hampers the ability to resolve the case.

2.      Remain flexible.

Even though you can prepare as much as possible for mediation and have a strategy laid out, mediation involves other parties’ feelings which can change your strategy and the ultimate outcome of the mediation. When this happens, being flexible will help you move the case forward, even if it does not resolve through mediation.

3.      Be familiar with opposing counsel and the mediator.

Choosing the right mediator can be key to having a successful mediation, whether it is virtual or in-person. You want to agree to mediate with a mediator that is knowledgeable in your area of law, has experience, and has the negotiation style you are looking for. Being familiar with opposing counsel’s personality will help you select the right mediator, determine your mediation strategy, anticipate their responses and maintain composure during mediation. If you are not familiar with opposing counsel, try reaching out to your colleagues to determine their reputation and negotiation style in advance.

4.      Make eye contact as much as possible.

Many times, a plaintiff will come into mediation nervous or defensive. This is likely because they are unfamiliar with the mediation process or because they believe that opposing counsel is out to “get them.” Maintaining eye contact with plaintiff will help you display empathy and will give plaintiff the feeling of being heard. If the mediation is virtual, always explain to plaintiff that you will be taking notes during the mediation, so they do not assume you are distracted during the process.

5.      Apologize, if appropriate.

Not every case requires an apology. Obviously when you are dealing with a denied case where causation or credibility are at issue, an apology is not necessary. However, if you have an admitted case and plaintiff was seriously injured and cannot return to his or her pre-injury employment, an apology goes a long way to ease plaintiff’s tension and defensiveness. It also puts plaintiff in the right frame of mind to resolve his or her case. Often, the defense counsel’s apology is the first-time plaintiff has heard a representative of the employer acknowledge the severity of the injury and the lasting effects it may have on plaintiff.

While remaining focused on the objective facts of the case is imperative, defense counsel must keep in mind that subjective nuances, such as those outlined above, can make or break a successful outcome for mediation. 

An employer’s right to direct medical treatment, long recognized as a staple of the Workers’ Compensation Act, is not total. The Court of Appeals’ January 2024 decision in Horsey v. Goodyear Tire & Rubber Co. is a reminder of that fact. Id. at 2024 N.C. App. LEXIS 61 * | 2024 WL 158256 The Plaintiff in Horsey injured his neck and shoulder while working as a tread booker. He treated with Dr. Brian Szura, who performed three surgeries on Plaintiff’s left and right shoulders. Plaintiff completed an FCE which indicated he could not return to work as a tread booker but could perform other jobs for Defendant-Employer that were within his permanent restrictions. Thereafter, Plaintiff returned to work in the “green tire” position, which was a new position. The written job description for the green tire position did not list any job demands outside of his permanent restrictions. Plaintiff alleged he was asked to do work outside of his restrictions and left the position. Plaintiff reported to the onsite medical clinic in the fall of 2018 reporting pain in both shoulders as a result of the new position. He returned to Dr. Szura in March of 2019, reporting pain, exhibiting limited range of motion, and Dr. Szura maintained the work restrictions and offered no additional orthopedic treatment.

Plaintiff, shortly thereafter and on his own initiative, sought treatment with Dr. Wilson regarding his complaints of shoulder pain, neck pain, and numbness in his hand. Dr. Wilson did not review Plaintiff’s prior medical records and relied only on Plaintiff’s description of his medical history, which was not fully accurate. Dr. Wilson opined Plaintiff’s ongoing complaints were related to the original workers’ compensation injury and recommended an MRI of the neck and right shoulder. He did not suggest any job restrictions. The parties entered into a Consent Order on February 3, 2020, whereby Defendants agreed to authorize the MRI evaluations and corticosteroid injection recommended by Dr. Wilson with the explicit caveat that such authorization was made without prejudice and did not constitute a formal selection of Dr. Wilson as the authorized treating physician. On March 31, 2020, Dr. Wilson provided restrictions of sedentary work only and no use of the right arm.

Plaintiff continued to work in the green tire position until the Defendant-Employer’s facility was closed down in late March 2020 as a result of the COVID-19 pandemic. When the facility reopened on May 26, 2020, Plaintiff presented the sedentary work restrictions assigned by Dr. Wilson. Defendant-Employer could not accommodate the restrictions, so Plaintiff remained out of work. Defendants subsequently filed a Form 61, Denial of Claim, denying the causal relationship of Plaintiff’s cervical and radicular complaints to the original work-related injury; Plaintiff’s claim of disability; Plaintiff’s request for medical compensation; and the causal relationship of Plaintiff’s right shoulder.

On August 13, 2020, Plaintiff returned to Dr. Szura and continued to complain of shoulder pain. Dr. Szura opined Plaintiff’s symptoms were consistent with myofascial pain, and he did not recommend additional surgical intervention. He also observed Plaintiff was experiencing limitations in both his right and left shoulder range of motion.

The parties litigated the issue of a change in treating physician, among other issues, with the Full Commission finding Plaintiff sustained an exacerbation of his work-related injury as a result of being instructed to perform tasks outside of his restrictions. The Full Commission further ordered that Plaintiff’s future medical care should be provided by a provider other than Dr. Szura or Dr. Wilson. It noted as well that Plaintiff had reasonably relied upon Dr. Wilson’s sedentary work restrictions. However, the Full Commission concluded that Plaintiff failed to establish that such restrictions continue to be medically necessary. Defendants appealed to the Court of Appeals and one of the issues was whether the Full Commission erred in determining Plaintiff was entitled to a change in treating physician.

The Court of Appeals, in finding that the Full Commission did not err in determining Plaintiff was entitled to a change in treating physicians, noted first that the employer’s right to direct medical treatment (including the right to select the treating physician) was not unlimited. The Court noted that subject to approval of the Industrial Commission, an employee, even in the absence of an emergency, had the right to choose their own physician. They then also had the burden of demonstrating that the change was reasonably necessary to effect a cure, provide relief, or lessen the period of disability. The Court added that the Industrial Commission had broad discretion in approving a request for change of treating physician. It also noted that adequate justification warranting a change of treating physician existed when an employee continued to experience pain that the approved treating physician was unable or unwilling to treat.

In Horsey, the Court found competent evidence of record existed to support the Full Commission’s ruling that Plaintiff was entitled to a change in treating physicians by pointing to Dr. Szura’s failure to adequately address Plaintiff’s ongoing pain and limited range of motion. The Court further highlighted that Dr. Wilson did not review any of Plaintiff’s prior medical records before recommending surgery and had relied instead solely on Plaintiff’s recitation of his medical history, which was inaccurate. As a result, the Full Commission did not err in determining Plaintiff was entitled to a change in treating physicians or in its decision to order Plaintiff’s care be transferred to a physician other than Dr. Szura or Dr. Wilson.

Practice pointer for Defendants: if you have a Plaintiff who is continuing to complain of ongoing pain and issues, and the treating physician you have selected does not offer additional solutions, then you may want to consider sending your Plaintiff to another physician or risk your Plaintiff obtaining his own physician who provides more restrictive restrictions. In this case, Defendants also ended up being liable for TTD for the period of time when Plaintiff had sedentary restrictions from Dr. Wilson that Defendant-Employer could not accommodate as the Full Commission found, and the Court of Appeals agreed (competent evidence existed standard), that Plaintiff had reasonably relied on Dr. Wilson’s sedentary work restrictions.

On January 23, 2023, The Supreme Court of North Carolina adopted the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions, superseding the existing set of rules in its entirety, that went into effect on May 1, 2023. Rule 4, which governs attendance at Superior Court mediations, was amended.

Rule 4 was amended to state that if all parties and the mediator agree that the mediation will occur remotely, in-person, or a mixture of the two, then the mediation will be held using the agreed-upon attendance method. If the parties cannot reach an agreement regarding the attendance method of the mediation, the mediation will automatically occur in person. However, the mediation will not automatically occur in person if the mediator has stated in the Dispute Resolution Commission’s Mediator Information Directory that they will only conduct remote mediations.

If a party that is required to attend the mediation would like an attendance method that was not agreed upon by the parties and the mediator, then that party may file a motion with the Industrial Commission Dispute Resolution Coordinator asking that a different method of attendance be ordered.

Rule 104 of the Industrial Commission’s mediation rules (11 NCAC 23G .0104) concerns mediation attendance and paragraph (b) specifies 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. Accordingly, the Rule 4 amendments directly affect the way the Industrial Commission determines mediation attendance methods. To help understand this concept, the Industrial Commission created a flowchart, which can be viewed on our website at: https://teaguecampbell.com/mediation-update-2024/.

Although some mediations are quite successful when held remotely, others seem to be more successful if the parties are physically present. Sometimes, when the mediation is held remotely, the participation of the parties can be less predictable. Further, in workers’ compensation cases, mediation is normally the only time defense counsel is able to see the injured worker, and it can be more difficult to judge credibility or to get an accurate impression of injury or level of disability if the parties are appearing remotely. This is especially true in denied cases where credibility and the extent of the injury may be in dispute.  If you have any questions or would like to discuss the best method of attendance at your mediations, please reach out to a member of our Teague Campbell Workers’ Compensation team.

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.