NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Written by: Elizabeth Ligon
North Carolina Supreme Court remands Lauziere v. Stanley Martin Communities, LLC, 376 N.C. 789, 854 S.E.2d 579 (2021) to the Full Commission for further findings.
In a recent decision issued by the North Carolina Supreme Court, the judges remanded a case back to the Full Commission where a plaintiff’s case was dismissed with prejudice for failure to prosecute.
Plaintiff was employed as a realtor and allegedly sustained an injury while trying to manually shut a garage door at a model home. Defendants denied Plaintiff’s claim. Plaintiff’s case was originally set to be heard in May 2016, but the case was continued because Plaintiff had not responded to discovery. On June 16, 2016, Plaintiff produced discovery responses to Defendants and asked to be placed on an expedited hearing docket. Defendants alleged Plaintiff’s discovery responses were insufficient. Over a year later, Defendants moved to dismiss the claim with prejudice. The Commission filed an Opinion and Award, dismissing Plaintiff’s case with prejudice pursuant to Industrial Commission Rule 616(b). Plaintiff appealed to the Full Commission, and the Full Commission affirmed the decision.
The sole issue on appeal to the Court of Appeals was whether the Commission erred in dismissing Plaintiff’s claim with prejudice. The Court of Appeals looked to North Carolina Civil Procedure Rule 41(b) for guidance and noted that the Commission must address three factors before it can dismiss a workers’ compensation claim for failure to prosecute under Rule 616(b). First, “whether the plaintiff acted in a manner which deliberately or unreasonably delayed the matter.” Lee v. Roses, 162 N.C. App 129, 132, 590 S.E.29 404, 407 (2004). Second, “the amount of prejudice, if any, to the defendant caused by the plaintiff’s failure to prosecute.” Id. Third, “the reason, if one exists, that sanctions short of dismissal would not suffice.” Id. at 133, 590 S.E.2d at 407.
The Court of Appeals found that the Commission erred on three grounds due to a lack of competent evidence. First, Defendants offered no competent evidence to support a finding that they had been materially prejudiced because they were unable to direct medical treatment since the claim was denied. Second, Defendants did not produce any evidence that supported their contention that they bore “substantial” expenses. Third, there was no evidence that Plaintiff could not have afforded to pay a monetary sanction, if so ordered, so the finding that Defendants’ monetary damages could not have been recouped was not supported by the evidence.
The Court of Appeals found that other, less permanent, sanctions remained available, such as civil contempt. The Full Commission’s order of dismissal was reversed, and the case was remanded to the Commission.
Judge Dillon concurred in part and dissented in part. While not all of the Commission’s findings were supported by the evidence, he believed that the remaining findings were sufficient to support a dismissal in the exercise of the Commission’s discretion. However, he could not conclude that the Commission would have reached the same result based on the remaining findings. Therefore, he voted to vacate the dismissal, remand the matter for further proceedings, and allow the Commission, in its discretion, to order dismissal or lesser sanctions.
Defendants appealed to the North Carolina Supreme Court. The Court remanded the case to the Full Commission to review the award, and as it deems necessary, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the Award.
We will continue to monitor this case to determine the implications it has on the evidence defendants need to present in order to successfully secure a dismissal with prejudice. The Commission will likely be reluctant to dismiss a claim with prejudice, so defendants must carefully document and present evidence that plaintiff deliberately or unreasonably delayed the matter, that defendants were prejudiced by plaintiff’s actions, and that no other sanctions short of dismissal would suffice. Such evidence may include documentation of how the delay impaired defendants’ ability to locate witnesses, medical records, treating physicians, or other data; how much money defendants expended, how often they traveled, or how far they traveled to litigate the claim; and financial documentation or other evidence to show why defendants’ costs could not be recouped from plaintiff.
On August 22, 2021, the Alabama Supreme Court issued Administrative Order No. 13, which declared a temporary state of emergency for the entire Judicial Branch of the State of Alabama due to recent increases in COVID-19 infections. The Order expressly provides that, subject to any party’s substantive or constitutional rights, any Alabama rule or statute that impedes a judge's or court clerk's ability to utilize available audio/visual technologies is suspended until November 29, 2021.
Judges are now temporarily authorized to use their discretion to allow any discovery, testimony, appearance, proceeding, hearing, review, or bench trial to be conducted by audio/video technologies upon making a written finding that, for good cause shown, time is of the essence for the administration of justice.
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
The Alabama Supreme Court recently released its opinion in Jackson v. Voncille Allen and Penn Tank Lines, Inc. The plaintiff, Patrick Jackson, was riding in the passenger seat of a commercial vehicle being operated by Valerie Allen, an owner/operator leased to Penn Tank Lines (PTL). Allen was killed in the accident, and Jackson alleged severe injuries. Jackson sued Allen’s estate, asserting that Allen’s negligence had caused the accident, and asserted claims of negligent hiring, training, and supervision against PTL, as well as vicarious liability for Allen’s actions through the doctrine of respondeat superior. Allen’s estate claimed it was entitled to immunity pursuant to § 25-5-53 of The Alabama Workers’ Compensation Act, which provides that agents of the same employer are immune to civil liability, except those based on willful misconduct. PTL claimed it was immune pursuant to § 25-5-52 and § 25-5-53 as Jackson’s employer and because Allen was PTL’s agent.
In support of its position, PTL argued that it was leasing the commercial vehicle from Allen and had exclusive possession, control, and use of the vehicle. PTL also asserted that Allen was training Jackson at the time of the accident, and that Allen was therefore an agent of PTL. Finally, PTL asserted that under Federal Motor Carrier Safety Administration (FMCSA) regulations, an owner/operator of a commercial vehicle, despite her status as an independent contractor, is deemed to be an employee of the motor carrier while operating the commercial vehicle. PTL and Allen’s estate both filed motions for summary judgment, and Jackson argued that there were genuine issues of material fact as to whether Allen’s estate and PTL were entitled to immunity.
In support of his position, Jackson pointed out that the independent owner/operator agreement between Allen and PTL specified that Allen would use her own judgment when conducting her work, PTL could not require Allen to accept specific assignments, and that PTL had not withheld taxes from Allen’s pay. Jackson further asserted that although Allen had been required to comply with PTL’s policies and procedures, Allen was required to provide her own safety clothing, shoes, and equipment. The trial court entered summary judgment in favor of both defendants, and Jackson subsequently appealed.
The Supreme Court affirmed summary judgment in favor of PTL as Jackson’s employer, but reversed the trial court’s judgment to the extent that it found Allen was PTL’s agent as a matter of law. The Supreme Court noted that the test for determining whether one is an agent or an independent contractor is whether the principal/employer retained a right of control, and that such determination was a question of fact that should generally be decided by the jury. However, the decision was not unanimous. Justices Bolin and Sellers concurred in part and dissented in part, stating that it is possible for someone to be both an independent contractor and an agent at the same time. However, both agreed the undisputed material facts established that Allen was acting as an agent at the time of the accident.
About the Author
This blog submission was prepared by Charley Drummond, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at cdrummond@fishnelson.com, or calling him directly at (205) 332-3414.
On July 28, 2021, the Alabama Supreme Court issued Administrative Order No. 12, which extended its previous orders concerning workers’ compensation settlements. This means that the following rules will be in effect through October 29, 2021:
1. Any workers’ compensation settlement hearing in any court may be conducted telephonically or by videoconferencing.
2. Any workers’ compensation settlement may be approved by an ombudsman of the Alabama Department of Labor (ADOL) or by a circuit judge. If a workers’ compensation case pending in court is settled with written approval of an ombudsman from the ADOL, that settlement shall result in the dismissal of the workers’ compensation claim pending in court.
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This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.
On July 30, 2021, the Alabama Court of Civil Appeals released an opinion in Kevin Patrick v. Mako Lawn Care, Inc. wherein it addressed the compensability of an assault by a co-employee. The altercation was the result of a feud between two lawn care crews. The member of one crew took the other crew’s mower home for personal use. To retaliate, a member of the other crew did the same thing. After that, words were exchanged. The situation escalated into a physical fight resulting in injury. The trial judge entered judgment for the employer because the altercation did not arise out of the employment, the employer did not benefit from the altercation, and that the plaintiff was an active participant and the aggressor. The Court of Appeals agreed that the law was correctly applied to the facts but that it did not necessarily agree with all the language and reasoning in the trial court’s final order.
My Two Cents:
We may not have heard the last of this Lawncare Crew Feud. The plaintiff argued that the Court’s reliance on a 1927 decision as controlling was misplaced because there were more recent decisions with a more liberal view on work altercations. The Court, however, noted that the 1927 case was still controlling and the plaintiff would have to petition the Alabama Supreme Court to overrule the older case. Unless the parties reach a settlement, that the plaintiff may very well do that.
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About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
Andrew Mackoff worked as a salesman and account manager for New Brunswick Saw Services. One of his duties was to travel to the company’s businesses for meetings and service calls. On December 3, 2018, Mackoff left his home in Blackwood, Camden County, New Jersey and drove to West Caldwell in North Jersey for a 10:00 a.m. customer meeting. Following the one-hour meeting, he decided to drive to the Galloping Hill Inn in Kenilworth, N.J. for lunch. He had been going to that restaurant for many years, and he loved their hot dogs. After lunch he said he planned to go to the company office in Middlesex County because he had not been to the office for a while.
In testimony petitioner said the Galloping Hill Inn was like a “nostalgia place” for him. He also commented that he was theoretically going to prospect because the restaurant had slicers for sandwiches. He called the Inn a “potential customer.” However, he admitted on cross examination that the Galloping Hill Inn was never a customer of his company, and he had no other customers to visit around the Inn. On the way to the restaurant he was involved in a car accident.
Petitioner filed a claim petition and a motion for medical and temporary disability benefits, seeking treatment for his injuries. Respondent opposed the motion and denied the claim as not arising from employment. The Honorable Ingrid French found that petitioner failed to prove a work-related accident. The Judge was not persuaded that petitioner was really intending to “prospect” the hot dog restaurant. The Judge commented that petitioner’s “primary purpose for driving to the hot dog place was personal and not work-related.” She added that petitioner: “unequivocally testified that immediately following his meeting . . . he was going to get his lunch at the ‘hot dog place.’ Then, his attorney prodded him to state that ‘theoretically,’ the ‘hot dog place’ was also a prospective customer. Specifically, and in support of this ‘theory,’ the petitioner stated that ‘any’ food establishment that sells prepared food is a potential customer.”
The Judge of Compensation found that petitioner had concluded his work day and was simply on his way to lunch. The Appellate Division affirmed the dismissal of the case. The Court said, “The definition of ‘employment’ under the statute is multi-faceted and includes situations in which the employee is physically away from the employer’s premises, but nevertheless is ‘engaged in the direct performance of duties assigned or directed by the employer.’”
The Court also observed that employees who have been injured in the course of a ‘minor deviation’ have been found to be covered for workers’ compensation purposes. But the Court did not feel this was a minor deviation case. The Court noted that petitioner admitted that if he drove to Galloping Hill Inn to get a hot dog and then to his office it would have been about two hours out of his way rather than going directly to the office. This was a key fact in the conclusion that the primary purposes of the trip was personal and non-work related.
The Court relied mostly on Jumpp v. City of Ventnor, 177 N.J. 470 (2003), noting that Mr. Jumpp’s accident while returning from his post office errand was found not to be a minor deviation even though the stop at the post office was only a few yards away from the road he was traveling on. The Court said, “ . . . petitioner’s decision to travel an hour east from his West Caldwell meeting because he was hungry and ‘going to get food first’ was not the sort of activity that ‘would have been compensable if carried out by an on-premises employee.’”
It was interesting that the Appellate Division referenced the decision in Cooper v. Barnickel Enterprises, Inc., 411 N.J. Super. 343, 346 (App. Div. 2010). In that case the petitioner’s car accident was found compensable where he was driving five miles to get a cup of coffee at a deli. Mr. Cooper was planning to meet with his union instructor but found out that his instructor was tied up teaching a course. Cooper admitted that he was simply killing time in getting a cup of coffee before meeting with the instructor. A key difference between the two cases is that Mr. Mackoff’s day was basically done, although he did testify that he planned to visit the company office after lunch. The Judge of Compensation and the Appellate Division inCooper felt that petitioner was just taking his coffee break, like any other employee would. But Mr. Mackoff was driving a much longer distance off the route to his office for a hot dog without having any other business meetings scheduled that day.
This case can be found at Mackoff v. New Brunswick Saw Service, A-3625-19 (App. Div. July 14, 2021).
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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Written by: John Tomei
In nearly all instances, when a worker is injured on the job in North Carolina, the North Carolina Industrial Commission has jurisdiction over the claim. One notable exception involves out-of-state employers who do not regularly employ three or more employees in North Carolina or voluntarily purchase North Carolina workers’ compensation coverage.
So, what happens when a worker is injured in another state and asserts a claim for benefits in North Carolina? Does the North Carolina Industrial Commission have jurisdiction over that claim? If North Carolina does have jurisdiction, what are the coverage implications under a workers’ compensation insurance policy?
Under the N.C. Workers’ Compensation Act, pursuant to N.C.G.S. 97-36, the North Carolina Industrial Commission has jurisdiction over claims for injuries occurring outside the state of North Carolina under three circumstances:
With regard to the contract of employment, North Carolina follows the “last act” test. More specifically, the Industrial Commission and the courts look at where the last act necessary for formation of the contract occurred to determine the state where the contract was formed.
If the last act occurred in North Carolina, then the North Carolina Industrial Commission has jurisdiction over the claim. These last acts can include taking a drug test, accepting an offer of employment over the telephone in North Carolina, or a requirement that the employee begins the work in North Carolina. A contract’s modification can sometimes confer or even remove jurisdiction. As is often the case, these claims are very fact specific, and must be carefully analyzed at the outset of the claim.
With regard to where an employer’s principal place of business is located, there are constitutional requirements for the Industrial Commission to be able to exercise jurisdiction over an employer, inasmuch as the Commission must first have personal jurisdiction over the employer by having sufficient minimum contacts in North Carolina to meet constitutional due process requirements. If those initial due process requirements are met, then the Commission and the courts will look at factors, such as where the employer is headquartered, to determine where the employer’s principal business is located.
The employee’s principal place of employment is often at issue in claims where the employee works in the trucking, transportation or delivery business. In those instances, an employee will often work in multiple states. As is the case with issues regarding the contract of employment, the determination of the employee’s principal place of employment is exceedingly fact-driven. For example, in Davis v. Great Coastal Express, 169 N.C. App. 607, 610 S.E. 2nd 276 (2005), it was found that the Industrial Commission lacked jurisdiction where a truck driver was injured, hired, paid, and made the majority of his deliveries in Virginia. On the other hand, in Perkins v. Arkansas Trucking Services, Inc., 134 N.C. App. 490, 518 S.E. 2nd 36 (1999), the Court found that the Industrial Commission did have jurisdiction over an out-of-state corporation where the employee’s residence was in North Carolina, and where he conducted aspects of his business in North Carolina, including receipt of assignments, storage and maintenance of the truck, and receipt of paychecks. Also, the employee made 18 to 20% of his pickup stops in North Carolina. Again, close analysis of each claim’s facts is crucial in determining the location of the injured employee’s principal place of employment.
The Act is clear that if an injured worker recovers benefits under the laws of another state’s workers compensation system, the carrier in North Carolina is entitled to a credit for any benefits received from that other state, up to the limits of the Act.
Since a North Carolina employer can face liability for a workers’ compensation claim in multiple states, how can that employer adequately protect itself from a potential multistate claim? Also, what coverage defenses in North Carolina are potentially available to a carrier?
The North Carolina Workers’ Compensation Policy and Information Page include the following language:
Other States Insurance: Part Three of the policy applies to the states, if any, listed here:
PART THREE
OTHER STATES INSURANCE
A. How This Insurance Applies
B. Notice
Tell us at once if you begin work in any state listed in Item 3.C. of the Information Page.
The language in the above-listed standard North Carolina workers’ compensation policy is clear that an employer must designate which state’s workers compensation law is going to apply to the policy and, additionally, what “other States” will apply, noting that “other state’s insurance” will likely only apply if the “other state” is listed in item 3.C. Obviously, if an employer knows it is conducting business in multiple states, it should list those states in 3.C. However, issues can nonetheless arise where a claim is made in a state not listed in 3.C. and whether the carrier can therefore effectively deny coverage for that claim. To resolve those issues, general principles of contract law provide that the clear and unambiguous terms of a policy are to be applied and enforced as written in the policy. Also, any ambiguity is construed against the drafter of the contract which, in these cases, is almost always the carrier who drafted the policy language.
In a case successfully handled by Teague Campbell, the North Carolina Court of Appeals addressed the interpretation of this policy language in Harrison v. Tobacco Transport, Inc., 139 N.C. App. 561, 533 S.E. 2nd 871, petition for discr. rev. den’d, 353 N.C. 263, 546 S.E. 2d 96 (2000), which involved a trucker who was hired, worked, resided and was injured in North Carolina. The employer’s policy only contained 3.A. coverage for Kentucky, and no states were listed in 3.C. As one would expect, the carrier denied coverage on the ground that the policy did not provide coverage for employees working in North Carolina. However, the employer contended that the policy was ambiguous and, therefore, unenforceable. On appeal, the Court agreed with the Commission and carrier, and found the policy language to be unambiguous. In reviewing the North Carolina standard policy provisions (listed above), the Court stated, “… the language unambiguously requires that [the employer] must have worked in North Carolina on the effective date of the policy, and that it have notified [the carrier] of such work within 30 days of that date period.” Since there was no evidence that the employer notified the carrier within 30 days of the effective date of the policy that it was working in Kentucky, there was no coverage provided to the employer under 3.C.
Given the Act’s jurisdictional provisions and the enforceability of the standard workers’ compensation policy language in North Carolina, an employer is well-advised to carefully monitor those states in which its employees are working and, if necessary, abide by the notice requirements of the policy by adding any such states to its workers compensation policies. Not only is this important in the context of the location of the employee’s principal place of employment, but a contract of employment can be made in North Carolina simply with a telephone call, which can unwittingly confer North Carolina’s jurisdiction on that employer, thereby subjecting it to exposure.
Carriers, as well, need to be aware of the law in North Carolina as to jurisdiction and the interpretation and enforcement of workers’ compensation policy provisions in these multistate claims, in the event coverage defenses are available.
On July 15, 2021, the presiding judge of the 10th Judicial Circuit of Alabama, Jefferson County, entered an Administrative Order which extended the previously entered Order concerning the holding of non-jury court proceedings by video or audio conference.
The previous Order provided Jefferson County Circuit Judges with discretion to hold virtual court hearings in all non-jury proceedings which included workers’ compensation cases.
The previous Order can be accessed at the following link:
administrative-order-2020-031-virtual-court-proceedings.pdf (alacourt.gov)
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About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.