Nale v. Ethan Allen: No Evidence of Causation

On September 1, 2009, the Court of Appeals ("COA") published another batch of opinions, several involving workers' compensation claims. Among them is Nale v. Ethan Allen, in which the COA reversed the Industrial Commission's determination that the worker's left knee injury was caused by the admittedly work-related injury to her right knee.

The employer faced an extremely high bar in reversing the Commission's decision. A determination of causation is, essentially, a finding of fact. The COA cannot reverse a finding of fact unless there is absolutely no evidence in the record to support it. If the record contains conflicting evidence of causation, the COA cannot second guess the Commission's decision. Rather, the Commission's finding is conclusive.

In Nale, the worker injured her left knee at work and underwent arthroscopic surgery to repair it. About eight months after surgery, she returned to her doctor with complaints of pain in her right knee. The doctor eventually performed arthroscopic surgery on the right knee, and the worker tried to have that surgery covered by her workers' compensation claim.

The injured worker's theory was that her right knee problems resulted from "overcompensating" for the problems in her left knee. In other words, she shifted more of her weight to the right knee, which made it painful. The Industrial Commission agreed, relying on this sentence from the doctor's testimony, "I have no doubt that her right knee was working harder than her left knee, given that she had arthritis in her left knee and was favoring that knee."

However, the doctor noted that the surgery revealed that the worker had a plica, or a band of scar in her right knee. He testified, "The plica is not something that would form as a result of over activity on the knee." Moreover, he testified that the injured worker told him she had twisted the right knee several days before she first complained to him of the problem.

The COA reviewed the doctor's evidence as a whole and determined there was no evidence to support that finding that the worker's problems were caused by overuse. The doctor testified that her problems resulted from the plica and the twisting injury. Although he testified that it was possible for overcompensation to cause such problems, he never stated that it probably was the cause of the right knee pain.

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Nale is interesting in that it suggests appellate review of Industrial Commission opinions still has some teeth. Just based on my reading of cases over the last several years, I had the impression that the COA was extremely deferential to Commission opinions and would reverse only on a purely legal issue. Nale indicates, at least, that although the bar for reversing a finding of fact made by the Commission remains high, the COA won't simply roll over for any factual finding made by the Commission.

Althought the COA found against the injured worker in this case, I am encouraged by the Court's willingness to review the entire record to determine what the doctor actually said. Too many times, the defense will take a single sentence from a doctor's testimony out of context and use it against the injured worker.

NC Workers' Compensation Insurance Rates May Drop

According to a story published on WRAL.com, the North Carolina Rate Bureau has requested a 9.6% decrease in workers' compensation insurance rates. If the rate adjustment is approved, North Carolina business could save more than $119 million.

The North Carolina Chamber of Commerce is constantly clamoring about the need to "reform" our state's workers' compensation system. Despite the Chamber's noise, we see the very real possibility of rates dropping by almost 10%. Our state does an excellent job of balancing an injured worker's need for benefits with the need of North Carolina businesses to have affordable insurance.

Court of Appeals: July Round-Up (Part II)

Moving on to the next batch of unpublished cases issues by the COA in July:

*Lassiter v. Town of Selma -- This is another classic "Adams Appeal," as touched on briefly in the blog post below. In Adams, the North Carolina Supreme Court held that as long as there is any evidence in the record to support the Commission's finding of fact, that finding will be upheld on appeal. In other words, if you are appealing a factual issue, you are going to lose. In other words, you are wasting your time and money.

In Lassiter, the Commission found that the injured worker contracted Lymes disease while working for his employer. There was evidence that he was bitten by a tick at work, that he developed a bullseye rash at the spot of the bite, and that his doctor diagnosed him with Lymes. That's plenty of competent evidence for the Commission to determine that he contracted the disease through work.

*Goodson v. Affiliated Computer Services -- The plaintiff had preexisting post-traumatic stress disorder (PTSD) resulting from domestic violence. As a result of her former boyfriend's physical abuse, she had a prosthetic eye. At a training session "ice-breaker" the plaintiff attended for work, the trainer commented about her prosthetic eye. The plaintiff claimed that the comment exacerbated her PTSD and rendered her unable to work. The Commission denied the claim, holding that the trainer's comment did not constitute an "accident."

The COA affirmed the denial. The Court examined previous PTSD and other psychological injury cases that supported the conclusion that there was no accident. Essentially, the comment about the plaintiff's prosthetic eye was not an unusual or unlooked-for event.

The real issue here is that the Commission is reluctant to recognize mental injury cases without a substantial aggravating event. This is especially so when there is significant evidence of preexisting psychological issues.

Court of Appeals: July Round-Up (Part I)

The Court of Appeals ("COA" for short) didn't have much to say on workers' compensation issues last month. All of its workers' compensation opinions were "unpublished," which means that they are not controlling legal authority. Here's a brief round-up of the COA's July opinions:

*Spears v. Tyson Foods, Inc. -- In Spears, the Commission denied the plaintiff's claim, in part because it found his testimony about an alleged back injury inconsistent and unsupported by his medical records. The plaintiff appealed to the COA arguing that the Commission failed to give his testimony enough weight.

I am constantly amazed at how much time and money are wasted appealing factual determinations of the Industrial Commission. Defendants often do this, I think, to compel plaintiffs to settle cases. Justice delayed is justice denied. I have no earthly idea why a plaintiff would make such an appeal. If there is any evidence to support a finding of fact made by the Commission, the COA must let the finding stand.

*Denning v. Interstate Brands Corp. -- In Denning, the Commission concluded that the plaintiff's preexisting back injury was not aggravated by his fall into a manhole. Two doctors hired by the employer testified that the fall did not aggravate plaintiff's back. Based on the COA's opinion, it looks like even the plaintiff's own surgeon could not say that there was an aggravation.

The plaintiff appealed arguing that, because his employer had admitted the injury, he was entitled to a presumption that his back problems were related to his workplace accident. This is often called the Parsons presumption. Typically, an injured employee must prove that his injuries were caused by the workplace accident. When the Parsons presumption applies, however, the employer must prove that the employee's injuries were not caused by the accident.

The COA held that the presumption did not apply because, even though the employer admitted the accident, it did not file a Form 60. (This is the form an employer must file with the Commission to admit an injured employee's right to compensation.) This was a terrible decision by the COA. It essentially allows employers to benefit from failing to file the forms they are obligated to file. The decision provides incentive to employers to delay or avoid filing the necessary forms.

It's noteworthy that even with the presumption, the plaintiff probably would have lost anyway. Two doctors testified that the accident did not aggravate the plaintiff's back injury. Such testimony is more than enough to overcome the presumption. In other words, right result, wrong reasoning.

Masood v. Erwin Oil: Interest on Unpaid Medical Bills?

In a recent unpublished opinion, the Court of Appeals opened the door to awarding an injured worker interest on unpaid medical bills when the worker wins a denied claim. In Masood v. Erwin Oil Co. (Masood II), the Court remanded the case to the Industrial Commission for additional findings of fact on whether the worker should be awarded interest on his unpaid medical bills.

Akhtar Masood was shot while working as a cashier at a gas station. His workers' compensation claim was originally denied, a decision upheld by the Industrial Commission. However, the decision was reversed by the Court of Appeals in Masood I. On remand, the Industrial Commission awarded benefits but refused to award interest on his unpaid medical expenses. Plaintiff appealed.

The Workers' Compensation Act requires employers to pay interest on a "final award" in favor of an employee. See N.C. Gen. Stat. 97-86.2. The Court of Appeals has previously held that a final award includes not just "cash" disability benefits owed the worker, but also medical expenses paid out of pocket. Thus, an injured worker is entitled to interest on money he pays out of pocket for injury-related medical expenes.

More recently, the Court of Appeals held that an injured worker is not entitled to interest on medical expenses that were paid by his health insurance while the workers' compensation claim was denied. The Court explained that the worker (1) did not experience a "loss of use" of the money and (2) was not disadvantaged by an inability to pay for his care.

In Masood II, the injured worker's medical bills went unpaid because he could not afford them and had no health insurance. The Court of Appeals stated that the proper analysis is whether Mr. Masood "experienced a loss of use of his money or was disadvantaged by an inability to pay for care." The Court determined that if Mr. Masood was disadvantaged by an inability to pay for care, he might be entitled to an award of interest on the unpaid medical bills. Because the Industrial Commission had made no findings of fact as to any disadvantage, the Court remanded the case for additional finding of fact on that issue.

Thus, when an injured worker ultimately wins a denied claim, he can receive an award of interest on his unpaid medical bills if he was disadadvantaged by the fact that the bills remained unpaid. It seems clear that the inability to obtain additional medical care because of the unpaid bills would constitute such a disadvantage. Perhaps "disadvantage" could also include harm to the worker's credit rating or even the harassment of debt collection.

• What does this mean for the injured worker?

Masood II is potentially a big decision for injured workers. Often, medical expenses will be significantly greater than disability benefits. An injured worker may be entitled to interest at an 8% rate on such expenses if he is disadvantaged by the inability to pay for medical treatment.

Explosion at ConAgra plant in Garner

More than two dozen workers are injured following an explosion at the ConAgra plant in Garner, North Carolina this morning. At least two other employees are unaccounted for several hours after the 11:00 a.m. explosion. Several of the injured workers were taken to the Jaycee Burn Center ant UNC Hospital in Chapel Hill.

The cause of the explosion is not known. ConAgra employs close to 600 workers at the plant, where they make Slim Jim products.

You can find news coverage of the explosion at WRAL.com and at the Raleigh News & Observer.

Silva v. Lowe's: Taking Additional Evidence on Remand

In an opinion filed May 19, 2009, the Court of Appeals gave the Industrial Commission broad discretion to take additional evidence when a case has been remanded for "proper findings of fact." Silva v. Lowe's Home Improvement, No. COA08-93 (2009).

In Silva, the Industrial Commission originally awarded ongoing disability benefits to the injured worker. However, the employer appealed, and the Court of Appeals sent the case back to the Commission because the Commission "failed to make specific findings of fact as to the crucial questions necessary to support a conclusion as to whether plaintiff had suffered any disability."

On remand, the Full Commission sent the case to a deputy commissioner to take additional evidence on the issue of disability. On the basis of the "new evidence," the Commission again determined that Mr. Silva was entitled to ongoing benefits.

The employer appealed again, arguing that the Commission had no authority to take additional evidence because the Court of Appeals did not instruct it to do so. The Court of Appeals rejected this argument and noted that the Commission has "plenary power to receive additional evidence" and that the decsion to receive additional evidence will be overturned only upon a showing that the Commission has abused its discretion.

The Court of Appeals also noted that the employer failed to object to the taking of additional evidence. Rather, the employer entered a pretrial agreement stipulating to the testimony of the additional witnesses.

Practitioners should keep in mind that even after the Commission's initial determination, the evidentiary record can be reopened on remand. Plaintiff's attorneys, in particular, should pay heed. Employees have the burden of establishing ongoing disability, and you don't want to get caught unprepared when the Commission takes additional evidence. Make sure your clients keep looking for work.

• What does this mean for the injured worker?

Keep looking for work even after you've won your case at the Industrial Commission. If your employer appeals and the Court of Appeals sends your case back to the Industrial Commission, the Commission can gather more evidence. If you haven't been looking for work since your favorable ruling, the Commission could determine that you are no longer disabled.

Freeman v. Rothrock: Supreme Court Rejects "Larson Test"

In a per curiam decision issued May 1, 2009, the Supreme Court overturned the Court of Appeals decision holding that an injured worker was barred from receiving workers' compensation benefits because he failed to disclose prior problems with his back. The Supremes did not issue an opinion. Rather, they adopted the dissent of Judge Wynn in the Court of Appeals case.

In a decision issued March 4, 2008, the North Carolina Court of Appeals adopted what it called the "Larson Test." Freeman v. J.L. Rothrock, --- N.C. App. ---, ---S.E.2d --- (2008). Under the Larson Test, in certain circumstances when an employee fails to disclose prior medical conditions and is later injured, the employee is not entitled to workers' compensation benefits.

In 2000, Mr. Freeman applied for work at J.L. Rothrock. On a medical-history questionnaire, he failed to disclose that he had a history of low back problems and light-duty work restrictions resulting from workers' compensation claims in 1992 and 1996. For almost two years, Mr. Freeman worked a strenuous trucking job with Rothrock without any back problems. On March 11, 2002, he suffered a back injury while working at Rothrock.

Rothrock tried to terminate Mr. Freeman's benefits on the basis that his "misrepresentations" on the questionnaire barred his right to recover benefits. The Industrial Commission rejected this argument. However, the Court of Appeals sided with Rothrock and held that Mr. Freeman was barred from receiving benefits.

In doing so, the Court adopted and applied the Larson Test. Under this test, an employee can be barred from receiving workers' compensation benefits if three elements are established: (1) The employee knowingly and willingly makes false representations about his physical condition, (2) the employer relies on these representations, and (3) there is a causal connection between the the false representations and the injury.

The majority of the Court of Appeals held that Mr. Freeman had made misrepresentations on his employment application and that J.L. Rothrock relied on them in hiring him. Because the misrepresentations related to prior back injuries, the court held that there was a causal connection between the failure to disclose the prior injuries and the back injury at Rothrock.

Judge Wynn dissented from the majority ruling for two reasons. First, the Court of Appeals had rejected the Larson Test in at least two prior cases. The Court of Appeals is bound by its own precedent and cannot simply "overrule" one of its own decisions. Second, Judge Wynn held that there is no statute in the Workers' Compensation Act that allows adoption and application of the Larson Test. Thus, the majority's use of the test amounted to "judicial legislation."

• What does this mean for the injured worker?

First, despite this result, do not make misrepresentations on your employment applications. As Elihu Root once advised a client, "The law lets you do it, but don't. It's a rotten thing to do." On the other hand, this case can be interpreted as encouraging injured workers to return to the workforce. So long as they can safely perform the essential functions of a job, workers should not be punished for testing the boundaries of restrictions from previous injuries

Welcome to The Injured Worker Blog!

This blog will cover issues and news about workers' compensation and workplace accidents in North Carolina. In exploring legal issues relevant to workers' compensation claims, we hope to provide a valuable resource for both injured workers in North Carolina and for the attorneys who practice in this area.

One primary focus of the blog will be analysis of appellate court cases that interpret the North Carolina Workers' Compensation Act. Hopefully, the analysis will be relevant to workers and attorneys alike. We also plan to cover any other items -- employment news, legislative efforts -- that touch on workplace accidents.

If you have any questions or comments, please e-mail us at theinjuredworkerblog@m-j.com.