Fayetteville Personal Injury Lawyer - Workplace Injuries

Penalty for Lack of Workers' Compensation Insurance Determined by Law in North Carolina

Margaret Embry — Wed, 24 Jun 2009 11:27:45 GMT

A former employee of a car wash in North Carolina has sued the car wash business for workers' compensation benefits for injuries sustained in a slip-and-fall accident, according to Risk & Insurance Online. After the accident, the worker was awarded disability benefits and medical benefits, but the employer never obtained a valid workers' compensation insurance policy. This insurance policy is required in North Carolina for all employers with more than three full-time employees. If the employer fails to obtain workers' compensation insurance, a mandatory monetary penalty of $50 per day from the date of the accident is to be collected.

The employee injured at the car wash argued that the penalty should go back to when the business was established in 1988 when the employer initially failed to obtain workers' compensation insurance, as opposed to the Industrial Commission's ruling that the monetary penatly only goes back to the date of the accident. The case was taken to the Court of Appeals which agreed with the employee that the Commission had made an improper calculation and the penalty should go back to 1988. The Court of Appeals noted

that the monetary penalty for failure to secure workers' comp coverage is not within the discretion of the court but is determined by the law. It noted the employer admitted that he never secured workers' compensation insurance for his business.

Originally posted at InjuryBoard by Margaret Embry

Hazards Of Working With Parts Washing Machines

Brent Adams — Mon, 23 Feb 2009 16:56:58 GMT

The use of parts washing machines which use recycled solvents cause a serious hazard to workers.

These parts washing machines are periodically filled with solvent which degreases parts for auto and industrial customers. These machines remove the used “dirty” solvent and recycle it for further use.

The machine consists of a drum partially filled with a solvent, a pump to push the solvent through a hose with a brush attached to it, and a sink in which the operator washes and scrubs parts to degrease and clean them with the solvent. Larger models use a tank instead of a drum.

These machines are defective for two reasons. First, they lack a local exhaust ventilation devise to remove vapors from workers breathing zones, to prevent workers operating these machines from inhaling the toxic vapors. Second, the machine lacks a barrier or guard to prevent solvent from splashing onto the machine operators.

From ordinary use of the machine, workers inhale toxic vapors from solvent aerosols that form as the solvent flows through the hose into the air in an open system, and from vapors that form as volatile components evaporate in the air.

Also, solvent splashes onto the skin of workers operating the machine from normal use.

This solvent is contaminated with many toxic chemicals which are especially harmful to the liver and kidneys.

Many lawsuits have been brought against the manufacturers of these parts washing machines and the solvent which is used in the machines, because of serious illnesses which have been caused by the users of these machines. Among the adverse condition are leukemia and hematological malignancies, other cancers, liver and kidney disease, neuropathies and other diseases.

Workers may also have workers compensation claims against their employers if they are unable to work or need medical treatment as a result of working with or near these parts washing machines.

Originally posted at InjuryBoard by Brent Adams

Back Injuries Compensable Without Accident

Brent Adams — Fri, 20 Feb 2009 09:41:00 GMT

A worker who injured his or her back while working may recover workers’ compensation benefits for this back injury even if the injury did not result from an accident. Ordinarily, in order to recover workers’ compensation the worker must have been injured in an “accident” such as a fall. However, with respect to back injuries, North Carolina law provides that a worker may recover for such injury if it is a result of a “specific traumatic incident”. An example of a specific traumatic incident would occur for example if a worker were lifting heavy boxes and felt a sudden “catch” or pain in his back. This incident would not technologically be considered an “accident”. Nevertheless, with respect to back injuries, such an event could result in the worker receiving workers’ compensation benefits.

With respect to all other body parts however, such as injuries to the hand, foot, leg, or shoulder, the injury must have been caused by an “accident”.

North Carolina laws defines “accident” as: The interruption of the work routine and the introduction thereby of unusual conditions.

There are other injuries or illnesses for which a worker can recover workers’ compensation benefits even in the absence of an accident. For instance, if a worker suffers an occupational disease as a direct result of the work environment, workers’ compensation benefits could be recovered. An example of occupational disease would be brown lung disease caused by exposure to cotton dust and asbestosis caused by exposure to asbestos. One very common occupational disease is carpal tunnel syndrome which is frequently caused by repetitive motions involved with the use of computer keyboards.

If you suffer an illness or other condition which you feel may have been caused or contributed to by your work environment, you should contact a lawyer to determine whether you have a claim.

Originally posted at InjuryBoard by Brent Adams

Workers’ Compensation Claim Filed After Employee Laid Off

Brent Adams — Tue, 10 Feb 2009 15:08:00 GMT

The North Carolina Court of Appeals has recently upheld an award of workers’ compensation benefits to an employee who did not file her claim until after she was laid off by her employer.

The employee had complained to a supervisor and to a company nurse about symptoms of carpal tunnel syndrome while she was still working. However, she continued working at her job until she was laid off by her employer. After she was laid off, the employee retrained to become a nurse’s assistant. However, she could not work as a nurse’s assistant because she did not meet the physical requirements of that job which included lifting. She also sought other employment without success.

After she was laid off work, the employee filed a workers’ compensation claim based upon the carpal tunnel syndrome she developed while working for her employer.

The North Carolina Industrial Commission held that the employee is entitled to workers’ compensation benefits. The Industrial Commission pointed out that the plaintiff testified that she complained of wrist pain to a supervisor while working for the employer and that a company nurse gave her pain medication and “stretch bands” to go on her wrist. Evidence included the fact that she saw a physician sometime in 1991 or 1992 and that she continued to complain about wrist pain until the end of her employment on October of 1994.

The North Carolina Court of Appeals upheld the award to the employee made by the North Carolina Industrial Commission. The case, Roberts vs. Sara Lee Hosiery is significant in that it demonstrates that a viable claim can be made for workers’ compensation benefits even though the employee worked up until the time she was laid off.

Although the employee continued to do the job even with her carpal tunnel condition until she was laid off, she was unable to work for other employers. There was evidence from the employee’s doctor that she was capable of employment however she would be subject to restrictions including the avoidance of repetitive pushing, pulling, grabbing, pinching, squeezing or other production-related activities. The doctor found that these restrictions were permanent. The doctor had testified that she had an increased risk of developing carpal tunnel syndrome as a result of her employment and that her employment significantly contributed to or was a significant causal factor in her development of carpal tunnel syndrome.

The North Carolina Court of Appeals held that the evidence set out above was sufficient to support the Industrial Commission’s Award of workers’ compensation benefits to the employee.

This case is an example of how a claim can be successfully persuade even though the facts of the case appear to make recovery very doubtful.

Originally posted at InjuryBoard by Brent Adams

Tennessee Widow Gets Higher Worker’s Compensation Benefits By Moving To North Carolina

Brent Adams — Mon, 09 Feb 2009 09:10:00 GMT

A Tennessee woman whose husband was killed while driving in North Carolina now receives an extra one hundred ten dollars ($110) per week in worker’s compensation benefits since she moved to North Carolina.

This is because North Carolina has higher worker’s compensation death benefits than Tennessee.

The North Carolina Industrial Commission allowed these additional benefits to the widow even though there is no specific North Carolina statue or case dealing with the issue. The Industrial Commission relied upon a 1980 United States Supreme Court decision which said that increasing another state’s worker’s compensation award was not precluded by the Federal Constitution.

The law in North Carolina clearly allows the claimant with North Carolina connections to get supplemental benefits when they are injured in another state. However, prior to this case, there was no specific authorization to allow a resident of another state to obtain increased benefits as a result of injuries which occur in North Carolina. The case Horne vs. Builders Transportation Company allowed the widow and her children to collect a total of four hundred sixty-six dollars ($466.00) per week under North Carolina’s worker’s compensation law even though they have been receiving three hundred fifty-five dollars and ninety-seven cents ($355.97) per week under Tennessee law.

All of the surrounding states have lower compensation benefits than we have in North Carolina.

The lesson this case teaches is that whenever more than one state has any ties or a relationship with an accident or with the parties involved in an accident it is beneficial to consult with lawyers in each state to determine the most beneficial action to take and to help decide in which state an action should be brought.

Originally posted at InjuryBoard by Brent Adams

What Forces Are Preventing Carpal Tunnel Syndrome Victims From Exercising Their Right To Receive Workers’ Compensation Benefits?

Brent Adams — Wed, 04 Feb 2009 08:57:00 GMT

Any worker who develops Carpal Tunnel Syndrome or other repetitive stress injuries as a result of performing the requirements of their job, are legally entitled to receive the comprehensive medical and cash benefits provided by the North Carolina Workers’ Compensation Act.

However, due to many “forces,” Carpal Tunnel Syndrome sufferers are being prevented from exercising their legal right to receive Workers’ Compensation benefits and as a result, are enduring devastating physical and financial hardships. These forces include:

· Because the early symptoms of Carpal Tunnel Syndrome occurs at night, many sufferers are not aware that their condition is related to their employment.

· Employers and their Workers’ Compensation insurance companies have no legal obligation to inform Carpal Tunnel Syndrome sufferers of their right to receive Workers’ Compensation benefits. They can and frequently do make knowingly false statements to the workers regarding their rights and benefits without incurring monetary sanction.

· Workers’ Compensation insurance adjusters take advantage of the fact that the Carpal Tunnel Syndrome claimant has little or no practical experience with the Workers’ Compensation system.

· Adjusters know that upon denial of their claim, most Carpal Tunnel Syndrome victims will simply “walk-away” thinking there is no way they can fight the insurance company.

· Every Workers’ Compensation insurance company has on staff or employs numerous experienced Workers’ Compensation attorneys whose sole responsibility is to protect the financial interests of the insurance company.

If your employer will not pay for being out of work because of a work related carpal tunnel condition, you should contact an experienced workers’ compensation lawyer.

Originally posted at InjuryBoard by Brent Adams

Recent North Carolina Industrial Commission Decision Clarifies Specific Traumatic Incident Under Workers' Compensation Laws

Robin Martinek — Mon, 15 Sep 2008 10:05:28 GMT

In a recent decision by the Full Commission, the Commission recognized that an employee suffered a specific traumatic incident resulting in injury to her back despite the fact that the pain did not become disabling until days after it began hurting. The key issue in this case was whether the injured employee sustained a back injury in a judicially cognizable time or as a gradual development over time.

The Commission clarified that as long as the injured employee establishes a judicially cognizable time or a specific specific period of time when they were working with a inciting event or incident causing the injury, the fact that the pain developed gradually over time did not bar the injury from being compensable under North Carolina law.

The Commission cited Chambers v. Transit Management, Fish v. Steelcase, Inc., and Roach v. Lupoli Constr. Co. to support their decision.

To clarify, back injuries are on of the few types of injuries that does not require an accident, but merely a specific traumatic incident, to be compensable.

"With respect to back injuries, however, where injury to the back arises out of and in the course of the employment and is the direct result of a specific traumatic incident of the work assigned, “injury by accident” shall be construed to include any disabling physical injury to the back arising out of and causally related to such incident." N.C.G.S. § 97-2(6) (2005).

Establishing a specific traumatic incident does not require the employee to prove that the incident is isolatable to a specific hour or even day. The main issue is whether there was a specific injury versus a gradual deterioration of the employee's back condition.

Originally posted at InjuryBoard by Robin Martinek

Pre-Employment Injuries May Come Back to Haunt Work Injury Victims

Robin Martinek — Fri, 15 Aug 2008 16:40:37 GMT

In a recent case before the North Carolina Court of Appeals, a Judge Jackson and Judge Hunter found that an employee's undisclosed medical condition increased his risk of a back injury combined with other elements, barred the injured employee from workers' compensation benefits.

In their analysis of the case, the judges noted that the Plaintiff had pre-existing restrictions from a 1996 back injury; however, in early 2000, he applied for a position with the Employer, despite his previous restrictions. As part of the application, the Employer's application process included questions about prospective employee's medical history, including questions about back aches, back injuries, work restrictions, and disabilities/impairments. In this situation, the employee failed to answer these questions truthfully. In addition, when he submitted for a physical, he failed to report to the physician that he had been previously injured.

Less than two years after he was hired, the employee experienced a traumatic incident while cranking a dolly that caused pain and injury to his back. When the Employer challenged the employee's right to receive disability payments, the matter was presented to the Industrial Commission. Both a Deputy Commissioner and a Panel of Full Commissioners found in favor of the employee, finding that his claim was compensable and he was entitled to ongoing medical and temporary total disability compensation benefits.

Defendant's appealed this decision to the North Carolina Court of Appeals where it came before a panel of three Judges for review and argued that the employee should be prevented from recovering any benefits because he had been untruthful in the information he gave to the Employer regarding his previous back problems based on a principle known as the Larson Test. The Larson Test is a three-pronged test that bars an employee from recovering workers' compensation benefits when the employer proves:

"(1) The employee must have knowingly and wilfully made a false representation as to his or her physical condition. (2) the employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury."

Based on the Employer's evidence proving that the three prongs of the Larson test had been met, two of the judges in the three judge panel found that the employee was barred from receiving workers' compensation benefits for his injury sustained on March 11, 2002.

It should be noted that the Court of Appeals had previously disapproved of the Larson test, since the test is effectively grants employer's a defense not found in the Workers' Compensation Act.

Judge Wynn filed a dissenting opinion with the two judge's decision based on the Court of Appeals' previous previous rejection of the Larson test and noted that there was no legislative authority for the Court to adopt the test, and found that the two judge's decisions was impermissible judicial legislation.

I understand that this matter is being appealed to the North Carolina Supreme Court.

Originally posted at InjuryBoard by Robin Martinek

Stress Victim's Family Collects Workers' Compensation For Her Death

Brent Adams — Mon, 11 Aug 2008 22:56:34 GMT

DEATH FROM WORK-RELATED STRESS LEADS TO FULL WORKERS’ COMPENSATION RECOVERY

The North Carolina Court of Appeals has ruled that stress can be an occupational disease which will support a workers’ compensation claim.

The case resulted from the death of a secretary who worked at a high-stress job at Duke University Medical Center.

The evidence showed that the secretary worked under an “exceptionally demanding doctor” who criticized her in front of others and was generally abusive towards her.

The secretary’s doctor testified that her pre‑existing diabetic condition had been exacerbated (made worse) by stress from her work under the abusive doctor at the Duke University Medical Center’s anesthesiology department. The doctor further testified that it was “more likely than not” that the secretary’s diabetes caused her death.

The North Carolina Industrial Commission awarded the heirs of the deceased secretary full workers’ compensation benefits because of its holding that the death was caused by her work-related occupational disease.

In so holding, Judge McCullough, writing for the court wrote that the doctor’s opinion: “Was based not only on the temporal sequence of events, but also on statistical information and the doctor’s knowledge of the history of the decedent’s condition”.

The employer had argued to the court that the doctor who treated the secretary for her diabetic condition had offered only “speculative” evidence about the actual cause of her death.

The aggravation of her diabetic condition caused her to experience a loss of most of the vision in her right eye by April of 1997. In January of 1998 the secretary lost most of the vision in her left eye. However, the secretary continued to work for the defendant until April 1, 1999 when she was placed on disability retirement. The secretary died on January 10, 2004. Thereafter, her sole heir brought this action for full workers’ compensation death benefits.

This is one of the few cases in which workers’ compensation benefits have been awarded to a non‑law‑enforcement-officer based upon a stress-related disease.

Originally posted at InjuryBoard by Brent Adams

Employers Not Keeping Employees as Safe as Claimed

Robin Martinek — Fri, 04 Jul 2008 17:08:00 GMT

According to a recent article in the Las Vegas Review-Journal, a congressional report found that two out of three (66%+) of work-related illnesses and injuries were not reported, despite claims of federal regulators that workplace injuries and illnesses were declining.

One of the reasons given for the underreported injuries and illnesses is that OSHA is less likely to investigate businesses with fewer injury or illness reports; therefore, employers have a vested interest in not complying with reporting requirements.

In the face of these issues, the congressional committee will be reviewing job conditions and work environments across the nation, such as the following:

1. Twelve (12) construction workers who died in an 18 month period while working on Las Vegas strip construction projects

2. A number of recent construction related deaths in New York involving construction cranes.

3. Working conditions in the North Carolina poultry industry where allegations indicate that workers are being "intimidated to keep quiet about injuries while a company claimed perfect safety records."

With as many as 69% of work-related illnesses and injuries being swept under the rug by employers, its no wonder that we continue to see the same types of injuries over and over in the same work fields. Under-reporting of accidents, injuries and illnesses hurts the employees and results in poor work-place conditions and higher number and more severe injuries to those employees. While it may save money for employers in the shortrun, eventually the bill comes due in the form of workers' compensation support for disabled or severely injured employees.

Like many "conditions" of our society, the failure of employers to report work-related injuries or illnesses will not change without people willing to step forward and stop the cycle, be they employees, employers, or governmental agents assigned to investigate police the safety of our population.

One of the reasons, our workers' compensation statutes were enacted to prevent employers from using unsafe business practices to save money and then turning out injured employees with no support or medical assistance. These statutes cannot provide the protections our legislation designed them to provide if the work-related injuries or illnesses are never reported.

Originally posted at InjuryBoard by Robin Martinek