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.