Workers’ Compensation Cases

<bold>Workers' Compensation — denial of claim — abuse of discretion — stubborn</bold> <bold>unfounded litigiousness</bold> <block_quote> The Industrial Commission abused its discretion in a workers' compensation case by finding that the denial of plaintiff employee's claim was justified, because even though part was indeed based on reasonable grounds regarding plaintiff's October 2002 lumbar laminectomy and her February 2003 thoracic and lumbar surgery, part of defendant's defense of this claim was unreasonable and constituted stubborn unfounded litigiousness when defendant had no evidence at the time of the denial that plaintiff's injuries were anything other than work-related. Plaintiff is entitled to additional attorney fees for that portion of the time her attorney spent responding to the Forms 61 and 63, but not that spent on refuting the allegations that her later surgeries were due to her pre-existing conditions.</block_quote>

<bold>Workers' Compensation — occupational disease —</bold> <bold>specific traumatic event</bold> <block_quote> The Industrial Commission erred in a workers' compensation case by concluding that plaintiff employee bus driver's ulnar nerve entrapment neuropathy and cervical spine condition were compensable occupational diseases and that the injury to the cervical spine qualified as a specific traumatic incident, and the case is remanded for further proceedings consistent with this opinion, because: (1) the Commission applied an incorrect legal standard in finding plaintiff's ulnar neuropathy and cervical spine condition to be compensable occupational diseases pursuant to N.C.G.S. § <cross_reference>97-53</cross_reference>(13) and the cervical spine condition to be a specific traumatic incident pursuant to N.C.G.S. § <cross_reference>97-2</cross_reference>(6); (2) plaintiff failed to establish that his employment placed him at a greater risk of contracting either his ulnar nerve entrapment or his cervical spine condition than the general public; and (3) the evidence is not sufficient to satisfy the requirements enunciated by the General Assembly in N.C.G.S. § <cross_reference>97-2</cross_reference>(6) that a specific traumatic incident occurred when plaintiff presented evidence that he experienced pain on a particular date but he presented no evidence linking that pain to the occurrence of an injury, and none of plaintiff's evidence establishes a specific traumatic incident of the work assigned that can be construed as an injury by accident to plaintiff's back.</block_quote> <block_quote> Justice MARTIN did not participate in the consideration or decision of this case.</block_quote>

<bold>1. Workers' Compensation — lifting restrictions</bold> <bold>— accommodations</bold> <block_quote> Although there was conflicting evidence in a workers' compensation case about defendant's accommodation of plaintiff's lifting restrictions, there was competent evidence to support the Industrial Commission's finding that the restrictions were not accommodated. The Commission is the sole judge of the weight and credibility of the evidence.</block_quote> <bold>2. Workers' Compensation — disability — reason</bold> <bold>for termination</bold> <block_quote> There was evidence in a workers' compensation case that plaintiff sought a meeting with his manager to discuss his work restrictions, a meeting which became heated and was followed by his termination. The Commission weighed the reasons for the termination and did not err by finding that plaintiff was terminated for the stated reason of being insubordinate without acknowledging evidence that plaintiff told his manager to "shut up."</block_quote> <bold>3. Workers' Compensation — disability —</bold> <bold>termination — purpose of meeting</bold> <block_quote> There was no error in a workers' compensation case in the Industrial Commission finding that plaintiff's manager planned to discipline plaintiff at a meeting at which she had requested a witness, although there was testimony that the additional person was requested because plaintiff was agitated. Evidence tending to support a plaintiff's claim is to be viewed in the light most favorable to plaintiff.</block_quote> <bold>4. Workers' Compensation — disability —</bold> <bold>termination for work restrictions — findings</bold> <block_quote> The findings supported the Industrial Commission's determination in a workers' compensation case that plaintiff's termination was directly related to his work restrictions rather than insubordination for which any non-disabled employee would have been terminated. The Commission found testimony by defendant's w

<bold>1. Workers' Compensation — claim by deputy — authority to</bold> <bold>extinguish county's lien — sovereign immunity</bold> <block_quote> There is specific statutory authority in the Workers' Compensation Act authorizing a deputy sheriff who received both workers' compensation insurance and a third-party settlement to seek a determination of Durham County's authority to<page_number>Page 508</page_number> file a lien against his settlement proceeds. The trial court did not err by not dismissing the matter under sovereign immunity.</block_quote> <bold>2. Workers' Compensation — subrogation — statute not</bold> <bold>unconstitutional</bold> <block_quote> The workers' compensation statute which provides subrogation for a third-party settlement, N.C.G.S. § <cross_reference>97-10.2</cross_reference>(j), is not unconstitutionally vague and does not violate due process. Neither does it violate the Exclusive Emoluments prohibition of the N.C. Constitution as to benefits received by deputy sheriffs or in the possibility of a double recovery.</block_quote> <bold>3. Workers' Compensation — third-party settlement — subrogation</bold> <bold>denied</bold> <block_quote> There was competent evidence supporting findings which themselves supported extinguishing Durham County's subrogation lien on a deputy's workers' compensation benefits, including the finding that petitioner's net recovery would otherwise be zero. The trial court did not abuse its discretion.</block_quote>

<bold>1. Workers' Compensation — partial incapacity — post-injury</bold> <bold>capacity to earn wages</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by considering plaintiff employee's post-injury capacity to earn wages in calculating benefits for partial incapacity under N.C.G.S. § <cross_reference>97-30</cross_reference> where the employee has not actually returned to work.</block_quote> <bold>2. Workers' Compensation — Form 26 agreement — alternative</bold> <bold>favorable remedies</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by concluding on the date the Form 26 was approved that N.C.G.S. § <cross_reference>97-30</cross_reference> provided a more favorable remedy than plaintiff received pursuant to N.C.G.S. § <cross_reference>97-31</cross_reference> under the Form 26 agreement based on the Commission's use of the federal minimum wage as plaintiff's earning capacity, because the determination was supported by relevant medical and record evidence.</block_quote><page_number>Page 562</page_number> <bold>3. Appeal and Error — preservation of issues — failure to</bold> <bold>assign error</bold> <block_quote> Although defendants contend the Industrial Commission erred in a workers' compensation case by failing to give defendants a credit for temporary total disability benefits paid past the date defendant reached maximum medical improvement, this argument is dismissed because: (1) defendants failed to assign error to the Commission's opinion and award on the basis that a credit was erroneously overlooked by the Commission as required by N.C.R. App. P. 10(a); and (2) none of the assignments of error direct the attention of the Court of Appeals to an alleged error regarding the credit, nor are there clear or specific record or transcript references included in the brief as required by N.C.R. App. P. 10(c)(1).</block_quote>

<bold>1. Workers' Compensation — timeliness of claim —</bold> <bold>last medical payment — foreign jurisdiction</bold> <block_quote> A workers' compensation claim was timely filed because it was within two years of the last medical compensation paid by defendants, even though the payment was to medical providers in Virginia. Nothing in the statutory definition of medical compensation limits the location to North Carolina, nor is there an exception<page_number>Page 423</page_number> for the employer's presumption that the claim will be in a foreign jurisdiction. N.C.G.S. § <cross_reference>97-24</cross_reference>.</block_quote> <bold>2. Workers' Compensation — timeliness of claim</bold> <bold>— short-term disability payments — not "other</bold> <bold>compensation"</bold> <block_quote> Short-term disability benefits paid in lieu of workers' compensation were not paid pursuant to the Workers' Compensation Act, and did not qualify as "other compensation" for timeliness purposes under N.C.G.S. § <cross_reference>97-24</cross_reference>.</block_quote> <bold>3. Workers' Compensation — appeal — failure</bold> <bold>to assign error — findings binding</bold> <block_quote> Failure to assign error in a workers' compensation case to findings about plaintiff's medical history and incapacity for employment meant that those findings were binding on appeal. The Industrial Commission's conclusion that plaintiff is totally disabled was upheld.</block_quote> <bold>4. Workers' Compensation — offered part-time</bold> <bold>employment — make-work</bold> <block_quote> The evidence in a workers' compensation case supported the finding that a part-time position offered to plaintiff was make-work and did not constitute other employment as defined by N.C.G.S. § <cross_reference>97-2</cross_reference>(9).</block_quote> <bold>5. Workers' Compensation — medical care —</bold> <bold>effectiveness</bold> <block_quote> The Industrial Commission did not err in a workers' compe

<bold>1. Workers' Compensation — sale of business</bold> <bold>— continuing jurisdiction of Industrial Commission</bold> <block_quote> An employer who had sold its paper mill and workers' compensation liabilities after an employee's work-related accident continued to be subject to the jurisdiction of the Industrial Commission with regard to that accident.</block_quote> <bold>2. Workers' Compensation — jurisdiction of</bold> <bold>Industrial Commission — not divested by course of</bold> <bold>conduct</bold> <block_quote> None of the cited authority supported an argument that a course of conduct by the Department of Insurance or the Industrial Commission could divest the Commission of the jurisdiction conferred on it by statute in a workers' compensation case involving an employer that had sold its business. Moreover, the parties had stipulated that the employer, Glatfelter, was bound by the provisions of the Workers' Compensation Act.</block_quote> <bold>3. Workers' Compensation — authority of</bold> <bold>Industrial Commission — agreement transferring</bold> <bold>obligations</bold> <block_quote> Adjudication of the validity of an agreement transferring workers' compensation liabilities along with a paper mill fell within the delegated authority of the Industrial Commission. N.C.G.S. § <cross_reference>97-6</cross_reference>.</block_quote><page_number>Page 597</page_number> <bold>4. Workers' Compensation — authority of</bold> <bold>Industrial Commission — discharge of obligation</bold> <block_quote> Determining whether a self-insurer has fully discharged its workers' compensation obligations is the province of the Industrial Commission; the Department of Insurance does not have that authority, by implication or expression. The Department of Insurance in this case improperly released the bond of a self-insured employer which did not secure its obligations in a manner compliant with N.C.G.S. § <cross_reference>97-185</cross_reference>(g).</block_qu

<bold>1. Workers' Compensation — compensable injury — professional</bold> <bold>football player</bold> <block_quote> The Industrial Commission did not err by finding that a professional football player sustained a compensable injury by accident arising out of and in the course of his employment where his leg was broken and ankle tendons torn when other players fell on the back of his leg during a game. There was evidence to support the Commission's findings that the injury was unusual.</block_quote> <bold>2. Workers' Compensation — disability — professional football</bold> <bold>player — reason for being released from team — personal</bold> <bold>knowledge</bold> <block_quote> The trial court did not err by allowing plaintiff, a football player, to testify about the reason for his termination from a team. Plaintiff offered personal knowledge about why he was released and his testimony was not hearsay.</block_quote> <bold>3. Workers' Compensation — disability — injured professional</bold> <bold>football player — return with another team — eventual</bold> <bold>release</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by awarding compensation to a professional football player who was injured while playing with defendant, then returned to play with another team. While plaintiff did try out for and make the other team, he was released from that team because of injuries suffered with defendant.</block_quote> <bold>4. Workers' Compensation — disability — professional football</bold> <bold>player — dollar-for-dollar credits</bold> <block_quote> The Industrial Commission did not abuse its discretion in a workers' compensation disability case by awarding a time credit rather than a dollar-for-dollar credit for payments made by defendants to plaintiff, a professional football player, after he was injured. Dollar-for-dollar credits are precluded by North Carolina law.</block_quote><page_number>Page 530</page_numb

<bold>Workers' Compensation — prior arm injury — not the direct cause</bold> <bold>of auto accident</bold> <block_quote> An Industrial Commission opinion denying compensation was affirmed where plaintiff contended that an automobile accident was a direct and natural result of his prior compensable arm injury, but there was competent evidence that the accident was caused by plaintiff jerking his car to the left upon hitting gravel in the road. The employee bears the burden of establishing the compensability of the claim, and the Commission did not err by finding that there was insufficient evidence that the accident was caused by the prior compensable injury.</block_quote>