State News : North Carolina

Bobby Anglin, a South Carolina resident, suffered a compensable automobile accident while working for his North Carolina employer, Dunbar Armored, Inc. Anglin received benefits pursuant to the North Carolina Workers’ Compensation Act from Defendants and later settled his third-party claim against the other driver in the South Carolina accident for $92,712.55. After this settlement, Defendants agreed to resolve their workers’ compensation lien against the liability settlement for one third of the lien value or $10,613.16. Anglin also reached a settlement with his under insured motorist (UIM) carrier; however, Defendants were not aware of the UIM settlement when the workers’ compensation lien was settled.

Subsequently, Anglin filed suit in Superior Court seeking a declaration eliminating Defendants’ workers’ compensation lien pursuant to N.C.G.S. § 97-10.2. He contended that South Carolina law applied to the determination of Defendants’ subrogation interests in the UIM settlement because it was paid pursuant to a South Carolina policy. He also contended that since South Carolina law does not allow subrogation of UIM funds, Defendants’ lien should be eliminated. Finally, Anglin argued that Defendants lien was already satisfied by their previous agreement to accept one third of the lien value. The trial court disagreed, applied North Carolina law, held there was no accord and satisfaction of the lien with the previous settlement as Defendants were not aware of Anglin’s UIM settlement at the time of the previous lien settlement, and awarded Defendants the remaining $21,206.31 of their workers’ compensation lien. Anglin appealed.

On April 2, 2013, in Anglin v. Dunbar Armored, Inc., the North Carolina Court of Appeals affirmed the decision of the trial court, upholding the award to Defendants in satisfaction of their workers’ compensation lien. The court noted that where a party seeks a determination of a workers’ compensation lien pursuant to N.C.G.S. § 97-10.2 it is seeking "remedial" or "procedural" relief and, as such, the law of North Carolina, as the forum state, applies. Since North Carolina law does not prohibit subrogation of UIM funds, the trial court did not improperly award Defendants a portion of Anglin’s UIM settlement in satisfaction of the remainder of their workers’ compensation lien.

Risk Handling Hint: Where Defendants have a particular interest in recovering from an injured workers’ third-party settlement to satisfy their subrogation lien, special consideration should be given to bringing an action in North Carolina’s courts, pursuant to N.C.G.S. § 97-10.2, to avoid the potential application of unfavorable subrogation laws in other states.

David Gray was working as a truck driver for UPS when he suffered a fatal heart attack. The claim was denied and, after a hearing, the Deputy Commissioner found the death compensable. The Full Commission affirmed. InGray v. UPS, 713 S.E.2d 126 (2011), the Court of Appeals affirmed in part and remanded the case to the Full Commission to enter findings on whether Defendants had successfully rebutted thePickrell presumption. Decedent’s widow filed a Petition for Discretionary Review and Petition for Writ of Certiorari to the North Carolina Supreme Court, both of which were denied. The Full Commission then entered an Opinion and Award denying the Mrs. Gray’s claim for death benefits and she appealed.

On March 19, 2013, in Gray v. United Parcel Service, Inc.,the Court first considered whether the Full Commission erred in concluding that decedent’s death was not compensable. In rejecting this argument, the Court found that the decedent’s autopsy listed the cause of death as coronary atherosclerosis, and Defendants’ expert witness opined that decedent’s fall from his work truck did not cause or contribute to his heart attack. The Court also noted that no evidence was presented that a fall was an accepted cause of a heart attack and as such, the evidence supported the Commission’s finding and conclusion that Mrs. Gray failed to carry her burden of proof to show that her husband’s death was the result of an accident arising out of the course and scope of his employment.

The Court also addressed the issue of whether the Full Commission applied the correct medical causation standard in concluding that Mrs. Gray’s medical expert’s testimony was speculative. The Court recounted that Mrs. Gray’s medical expert admitted that he did not have a medical explanation for Decedent’s fall and the Commission, therefore, reasonably concluded that her expert testimony was speculative and properly relied on medical evidence presented by Defendants.

Risk Handling Hint:

While the Court initially remanded the Gray case back to the Full Commission to consider whether Defendants had successfully rebutted thePickrell presumption, their subsequent holding inGray is yet another reminder that the Full Commission can weigh evidence and make credibility determinations that will not be disturbed on appeal so long as there is some evidence to support the Commission’s findings and conclusions.

Risk Handling Hint - Written Notice; Reasonable Excuse; Actual Knowledge

In the course of bringing coffee and doughnuts to a morning meeting in 2006, James Yingling’s car was hit by another driver who ran a red light. Yingling called his supervisor and the branch manager, who both came to the scene of the accident, and later reported the accident to his manager in Charlotte. However, Yingling never gave Bank of America any written notice of the accident. Later that day, Yingling began feeling back pain and sought treatment, but continued to work for Bank of America. Two years later, Yingling suffered another work-related injury when he slipped and fell on a recently waxed floor. He did not return to work after that accident. Shortly thereafter, Yingling filed a written notice of a claim for both the 2008 slip-and-fall accident and the 2006 car crash. Defendants denied both claims, on the basis that Yingling failed to give written notice without reasonable excuse and that Defendants were prejudiced by the two year delay.

The case was heard by Deputy Commissioner James C. Gillen, who entered an Opinion and Award in favor of Yingling. Defendants appealed to the Full Commission, which affirmed the Deputy Commissioner’s decision. Defendants appealed.

On March 5, 2013, in Yingling v. Bank of Am., the Court of Appeals considered the case and upheld the Full Commission’s Opinion and Award. The Court first considered whether the Full Commission erred in rejecting Defendants’ lack of notice argument. Recounting the details of the case, the Court found Yingling provided actual notice to his supervisor, branch manager and manager in Charlotte, on the day of the accident. The Court further noted that although Yingling did not immediately seek medical treatment, he did soon thereafter and he notified Bank of America of his need to be absent from work to attend medical appointments. N.C.G.S. § 97-22 states the employer must have "knowledge of the accident"; but the Court found that it does not require knowledge of a "work-related injury" as argued by Defendants.

The Court then addressed the second prong of N.C.G.S. §97-22; prejudice to Defendants. In rejecting this argument, the Court held that Defendant had received sufficient notice of the accident, and so any prejudice it suffered was its own fault, so to speak. If Defendants had properly investigated the accident at the time it received actual notice and accepted the claim as compensable, it could have directed Yingling’s treatment and filed a third-party claim against the driver of the other vehicle.

The last argument addressed by the Court was whether the Full Commission erred in approving Yingling’s treating physician in light of the 2011 changes to N.C.G.S. § 97-25. The 2011 amendments only changed the word "physician" to "health care provider." The Court admonished that the change did not indicate that the Legislature intended to alter the long-standing rule that the Industrial Commission can approve a health care provider chosen by the employee. Moreover, the right to direct medical treatment is triggered only when the employer has accepted the claim as compensable. Nothing in the revised statute suggested to the Court that the Legislature intended to allow the employer to enjoy the benefits of choosing a treating physician without bearing the associated obligations, i.e., paying for medical treatment.

Risk Handling Hint:

Where the employer has some notice of a work-related injury,Yingling suggests that it is not enough to rely on an employee to report any ongoing medical issues. Risk managers must take affirmative steps to determine whether subsequent absences or medical treatment are due to the work-related incident.

David Helfrich suffered four work-related injuries while working for Coca-Cola Bottling. Helfrich’s third accident occurred on March 12, 2008, when he injured his right foot on a truck lift gate. The compensation rate for this injury was $672.98. Helfrich’s final injury occurred on May 20, 2009, when he hurt his right knee and ankle while stepping off a forklift. The compensation rate at that time was $634.28. Following a for-cause termination on March 15, 2010, Helfrich filed a Form 33 alleging entitlement to indemnity benefits of $672.98 per week from and after March 16, 2010.

The case was heard by Deputy Commissioner Victoria M. Homick who entered an Order finding that Helfrich was entitled to receive temporary total disability payments at the rate of $634.28 per week from and after March 15, 2010. Helfrich appealed. The Full Commission affirmed, concluding that as a result of Helfrich’s third and fourth injuries, he was disabled from March 15, 2010 and continuing and entitled to temporary total disability compensation of $634.28 per week. Helfrich appealed that determination as well.

On March 5, 2013, in Helfrich v. Coca-Cola Bottling Co.,Consolidated, the Court of Appeals addressed the issue of the applicable compensation rate after March 15, 2010 and concluded that the Full Commission erred in basing the rate on the fourth injury exclusively. According to the Court, the Commission never determined whether Helfrich had received an injury for which compensation was payable while still receiving or being entitled to compensation for a previous injury in the same employment and, if so, which of the applicable compensation rates would cover the longest period and provide the largest amount payable as required by N.C.G.S. §97-34. Instead, the Commission simply found that Helfrich was disabled as a result of his March 12, 2008 and May 20, 2009 injuries, collectively, and was entitled to temporary total disability compensation at the lower May 20, 2009 rate. The Court remanded the case to the Commission for the entry of a new order which addressed the application of N.C.G.S. § 97-34, and analyzed which injury covered the longest period and provided the largest amount payable to Helfrich.

Risk Handling Hint: In situations of multiple, over-lapping, compensable injuries, risk managers are reminded to consider the application of N.C.G.S. § 97-34 in addition to the medical evidence of work limitations.

NC Risk Handling Hint -Setting Aside a Form 60

Dennis Ray Spivey was employed by Wright’s Roofing as a laborer for approximately three years. Wright’s
Roofing contracted with AMS Staff Leasing, who provided workers’ compensation coverage for its employeeswhose employment had been reported to AMS. Spivey completed forms required by AMS and AMS issued his paychecks. Plaintiff stopped working for Wright’s Roofing and a Wright’s Roofing representative submitted termination forms to AMS noting that Spivey was no longer employed by Wright’s Roofing. A year later, Spivey resumed his employment with Wright’s Roofing but did not complete AMS staffing forms. Instead, Spivey was paid with checks drawn on a Wright’s Roofing account.

One day, Spivey was injured as he worked on a residential job in which Boyet Builders was the general contractor and Wright’s Roofing was the subcontractor. Spivey filed a Form 18 and AMS Staff Leasing, Dallas National Insurance, Co., and Crawford & Company (hereinafter “Defendants”) filed a Form 60 and began paying weekly disability benefits. Shortly thereafter, Defendants determined that they had no Workers’ Compensation coverage applicable to Spivey, and filed Forms 63 and 61, denying liability and terminating benefits.

Spivey filed an amended Form 18 and a Form 33 in which he named Wright’s Roofing, Dallas National and Boyet Builders as responsible parties. Boyet Builders filed a Form 61 and a Form 33R and denied that Spivey was its employee at the time of the injury and asserted that Defendants had already accepted liability for benefits.

At hearing, Spivey moved that Defendants be ordered to reinstate TTD benefits and Deputy Commissioner Phillips allowed the motion. She later entered an Order holding Boyet Builders and Auto-Owners Insurance liable for Spivey’s injury and ordered them to pay indemnity and medical benefits. Boyet and Auto Owners appealed to the Full Commission. The Commission determined that Defendants had no legal basis to withdraw their Form 60 and ordered them to provide indemnity and medical benefits. Defendants appealed to the North Carolina Court of Appeals.

On January 15, 2013 inSpivey v. Wright’s Roofing, the Court first considered whether the Full Commission erred by refusing to allow Defendants to set aside the Form 60. Finding no error, the Court noted that an employer who files a Form 60 waives the right to contest the compensability of a claim on the basis of a unilateral mistake. According to the Court, the burden is on the employer or carrier to determine whether a particular claim is compensable and whether the employer or carrier is liable before filing a Form 60.

The Court also addressed the issue of whether the Full Commission erred in holding that Boyet Builders was not responsible for benefits pursuant to N.C.G.S.§ 97-19. The Court noted that N.C.G.S. § 97-19 applies only when two conditions are met. First, the injured employee must be working for a subcontractor doing work that has been contracted to it by a principal contractor. Second, the subcontractor does not have workers’ compensation insurance coverage covering the injured employee and since workers’ compensation insurance was available through Spivey’s immediate employer, Wright’s Roofing, because Defendants accepted the claim, there was no error.

Risk Handling Hint:Risk Managers are reminded to carefully consider whether a claim is compensable before accepting an injury on a Form 60. Benefits can be paid and medical treatment provided during the investigation period by filing a Form 63. If additional time is required to conduct an investigation, the employer and carrier can request a limited extension of time from the Industrial Commission.

NC Risk Handling Hint -N.C.G.S. § 97-6; Employment Relationship

In a startling departure fromestablished precedent, the North Carolina Court of Appeals has elevated the position of a written agreement with regard to the determination of whether an employment relationship exists for the purposes of workers’ compensation. InGregory v. Pearson, the Court held that, “[b]ecause the [Defendant] chose [by contract] not to establish an employment relationship with [Plaintiff], it eschews both the liabilities and protections of the Workers’ Compensation Act.” The Court in Gregory went on to explain the provisions of N.C.G.S. § 97-6, which provides that “[n]o contract…shall in any manner operate to relieve an employer…of any obligation created by this Article,” did not apply as the parties’ agreement had already explicitly rejected an employment relationship in contract. In other words, because Defendant agreed in a contract that no employment relationship existed, the Workers’ Compensation Act did not apply and Defendant could not avail itself of the exclusivity provision of the Act.

The decision inGregory was handed down on December 31, 2012. As such, the time-frame for pursuing additional review or rehearing hasnot yet run. For the time being, however, this decision looks to be a significant development in the body of case-law which defines an employment relationship for purposes of workers’ compensation. It may be North Carolina’s first step toward allowing employers to “opt out” of the workers’ compensation system.

TCDG will continue to monitor this development as its outcome and impact become more clear.

NC Risk Handling Hint -Estoppel; Insurance Coverage; Sanctions

Defendant insurance carrier, New York State Insurance Fund (NYSIF), contracted to provide workers’ compensation coverage for Defendant-Employer, DenRoss Contracting, with a policy rider which specifically excluded “bodily injury occurring outside the State of New York.” DenRoss was annually audited by NYSIF, after which the policy was automatically renewed and premiums paid. DenRoss provided maintenance service throughout the U.S. and contracted with Defendant Kapstone Kraft Paper to provide services, for which DenRoss hired James Arthur Smith and several others. Smith filed a workers’ compensation claim after suffering a work-related injury. DenRoss denied the claim, stating NYSIF had coverage and Kapstone was the principal contractor and statutory employer. Kapstone denied liability stating Smith was either an independent contractor or the employee of an independent contractor, DenRoss.

The Deputy Commissioner ordered DenRoss to begin making payments immediately or notify the Commission of its denial that day and further ordered DenRoss to submit the claim to NYSIF for immediate payment. The order was not appealed. After a hearing the Deputy Commissioner entered an Opinion and Award ordering NYSIF to pay Smith benefits, including past medical expenses, attendant care and a 10 percent penalty for unreasonable and untimely denial of benefits under N.C.G.S. § 97-18(j).

On Appeal by NYSIF, the Full Commission determined that allparties were bound by the Workers’ Compensation Act, that DenRoss was covered under NYSIF’s policy at the time of Smith’s injury, awarded a 10 percent penalty for untimely and unreasonable denial and ordered Defendants to pay Smith’s attorney’s fees under N.C.G.S. § 97-88.1 as a sanction.

On December 18, 2012, inSmith v. DenRoss Contracting, U.S., Inc., the Court of Appeals first dismissed NYSIF’s contention that it was not subject to the jurisdiction of the North Carolina Industrial Commission and noted that New York law specifically stated that the NYSIF was created by statute, but was “nevertheless treated by statutes as a separate insurance business… especially in litigations.”Commissioners of State Insurance Fund v. Low, 3 N.Y.2d 590, 595, 148 N.E.2d 136, 138 (1958). The Court agreed with the Commission that Smith sustained compensable injuries while working for DenRoss who paid premiums to NYSIF to maintain coverage and, as such, NYSIF was liable for Smith’s injuries.

The Court also held that the Commission did not err in concluding that Smith’s injury was covered by the insurance policy between NYSIF and DenRoss inasmuch as the Commission did not base its decision on the coverage provided in the policy which specifically excluded bodily injury occurring outside of New York State. Rather, the Court noted, the Commission had instead concluded that NYSIF was estopped from denying coverage because its representations to DenRoss were sufficient for DenRoss to believe it was covered for injuries outside New York State.

Although the Court declined to determine whether NYSIF misled DenRoss, it concluded that the Commission did not err in finding that NYSIF’s actions were sufficient to induce DenRoss into believing it had coverage because NYSIF accepted premiums knowing that DenRoss only had clerical staff in New York State, but performed work throughout the United States.

The Court, however, did find that the Commission erred in awarding a late payment penalty against NYSIF even though it responded more than thirty days after Smith’s Form 18 since it did respond within thirty days of receiving notice of the claim from the Commission, as required under N.C.G.S. § 97-18(j)(2). The Court also held that the Commission erred in concluding that NYSIF unreasonably defended the claim since NYSIF’s policy specifically excluded claims for bodily injury outside of New York State and the Full Commission’s award on estoppel grounds was affirmed.

Risk Handling Hint: Carriers need to be aware of the specific business of their insured. In North Carolina, coverage may be found despite any policy language which otherwise attempts to limit the geographic scope of coverage.

NC Risk Handling Hint -Attendant Care Services; Home Modifications; Post Award Interest

Sheryl Boylan suffered a compensable back injury in 2003 and was awarded past and future attendant care services, at $8 per hour, for care provided by her daughter and her sister’s family in the past and her sister’s family in the future. This was affirmed by the Court of Appeals.Boylan v. Verizon Wireless, 201 N.C. App. 81, 685 S.E.2d 155 (2009).

Boylan’s daughter moved back into Boylan’s home in April 2009 and resumed providing attendant care. As the Commission had not provided for future changes in attendant care providers, Defendants did not pay her. Defendants also argued Boylan’s claim for attendant care had been rendered moot by Defendants’ modifications to Boylan’s home and Boylan’s own medical improvement. Both parties filed Form 33s and, after a hearing, both parties appealed to the Full Commission. The Full Commission awarded $8 per hour for all services provided by Boylan’s daughter from April 2009 to the date of its Opinion and Award and $10 per hour for ongoing attendant care provided by either Boylan’s daughter or her sister’s family or, if they were unable, professionals. The Full Commission also awarded Boylan costs for modifications to her home, but denied Boylan’s request for interest on attendant care between August 2004 and April 2009 because Boylan had not suffered any prejudice or out of pocket expenses.

On December 18, 2012, inBoylan v. Verizon Wireless, the Court of Appeals first found that the Full Commission did not err in awarding Boylan attendant care from April 2009 onward as there was competent evidence to support the Commission’s finding that such care was ‘medically beneficial’ to Boylan including testimony from a certified life care planner and registered nurse. Their testimony was that Boylan needed eight hours of care daily and was at risk of falling if she did not receive it. In finding attendant care medically beneficial, the Full Commission dismissed the idea that Boylan’s medical condition had improved to the point that such care was unnecessary.

The Court also affirmed the Full Commission’s determination that the cost of skilled nursing care was competent evidence to determine the rate for unskilled attendant care provided by family members. Judge Beasley, however, dissented in part on this issue, stating that evidence of the cost of skilled nursing care was not competent evidence which supported the hourly rate awarded by the Full Commission.

Although home modifications were not expressly recommended by Boylan’s physicians, the Court concluded that the Full Commission did not err in awarding Boylan home modifications since her occupational therapist, life care planner and occupational nurse all testified that she would benefit from further modifications, including wheelchair ramps and a handicapped accessible pantry. In addition, the Court found that the Full Commission did not err in preventing Defendants from choosing Boylan’s attendant care provider despite their right to direct medical treatment in this accepted claim because Defendants had not directed care to their chosen provider in a prompt and adequate manner and fought Boylan’s claims for attendant care at every step.

The Court also concluded that the Full Commission erred in failing to award Boylan interest on the portion of attendant care awarded from August 2004 until April 2009 because the Commission incorrectly required a show out of pocket expenses or prejudice. According to the Court, there is no discretion in the application of N.C.G.S. § 97-86.2 which requires interest be paid on the final award from the date of the initial hearing until the award is paid. The purpose of the statute is to compensate Plaintiffs for the lost time value of money, to prevent unjust enrichment to Defendants by delaying payment, and to promote settlement. There is no requirement that Plaintiffs show prejudice or out of pocket expense. 

Risk Handling Hint: Although N.C.G.S. § 97-2(19) has been revised to require a prescription by a health care provider or authorization by the employer or the Commission for attendant care services, the Boylan case still clarifies that the Commission can weigh evidence supporting an award of attendant care services. In addition, evidence of the value of skilled nursing services can be considered as evidence even though non-skilled services are actually rendered. Defendants should take care to control all medical treatment, including attendant care, in an accepted case in a prompt and timely manner, to avoid losing control of the treatment and creating further issues in the claim.

NC Risk Handling Hint -Necessity of Objection Before Deputy Commissioner; Admissibility of Surveillance Video

Clifton Bowman was a repair technician for Cox Toyota Scion. He alleged that he tripped over an air hose at work causing injury to his neck and low back. After the fall, Bowman reported the accident to his supervisor and showed several employees his alleged back injury before leaving work early. Cox Toyota Scion had installed an extensive security system in the building, including surveillance equipment that recorded footage in the area where Bowman allegedly fell. An executive with Cox Toyota Scion reviewed the surveillance footage after learning of Bowman’s alleged fall. This footage was also recorded onto several DVDs. Because they could find no evidence of a fall on the surveillance footage, Defendants denied Bowman’s claim.

At hearing, Plaintiff’s evidence consisted of his own testimony, medical evidence and testimony of two witnesses who testified that Bowman’s back was red and swollen after the fall. The Deputy Commissioner denied Bowman’s claim, concluding that he was not credible because the video surveillance did not corroborate his testimony. On appeal, the Full Commission reversed the Deputy Commissioner and found that he erred in admitting the surveillance since Defendants did not lay a proper foundation or authenticate the surveillance video.

On December 4, 2012, inBowman v. Cox Toyota Scion, the Court of Appeals first considered whether the Full Commission erred in concluding that Defendants’ surveillance video should not have been admitted into evidence when the reversal was based on an objection that Bowman did not raise before the Deputy Commissioner. Rejecting Defendants’ argument that the North Carolina Rule of Appellate Procedure which precludes a party who fails to obtain a ruling on an issue before the trial court from raising the issue on appeal applied, the Court noted that the Full Commission is not an appellate court and that this argument had already been rejected inJoyner v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610 (1988). The appealing party’s Form 44 determines the issues properly before the Full Commission, and the fact that a particular issue was not objected to or raised before a Deputy Commissioner does not, in and of itself, prevent the Full Commission from deciding the issue.

The Court also addressed whether the Full Commission erred in concluding that Defendants had not laid a proper foundation or authenticated the surveillance video when Defendants had offered evidence that the surveillance cameras were working properly and that the video footage was unedited. The Court held that the Commission erred in excluding the video, noting that the Rules of Procedure and Evidence used by the Commission are required to be simpler than the Rules used in State Court. Video recordings are generally admissible when a proper foundation is laid and when the recording is authenticated, which is usually accomplished when there is evidence that the camera and taping system were properly maintained and operating when the video was made, the videotape accurately presents the events depicted, and there is an unbroken chain of custody.

In this case, the Court found that a supervisor from Cox Toyota Scion testified that a state-of-the-art security system was installed, that Cox Toyota Scion experienced no problems with its video surveillance, and that the cameras were in operation on the date of the alleged injury. The supervisor also testified that he followed the instructions for retrieving footage from the cameras. Based on this testimony, the Court concluded that Defendants laid a sufficient foundation for the video and that the Full Commission erred in excluding this evidence. The Court remanded the case back to the Full Commission for the entry of an Opinion and Award that considered the video surveillance. Notably, the Court also rejected Bowman’s argument that three seconds of the video surveillance was missing, which Defendants acknowledged might have coincided with the time at which Bowman claimed to have fallen, since that issue goes to the weight of evidence, not to its admissibility.

Risk Handling Hint:Bowman underscores the fact that the issues before the Deputy Commissioner are not necessarily the same as those ultimately considered by the Full Commission. An appeal to the Full Commission can also include newly received evidence in some circumstances. Risk managers are reminded to consider the Full Commission’s scope of review to address every aspect of a worker’s compensation claim.Bowman also establishes guidelines for the admission of surveillance evidence. Risk managers should ensure that the chain of custody for surveillance footage is carefully maintained, that all surveillance equipment functions properly, that the footage is unedited, and that a representative of the employer can testify as to the fairness and accuracy of the events depicted in the recording.

NC Risk Handling Hint -‘Arising Out Of’ and ‘In the Course Of’; Material Aggravation; Attorney’s Fees

Cynthia Mintz worked as a customercare representative for Verizon Wireless. She worked on the second floor of the building that Verizon occupied. Verizon did not own the building. Other businesses also occupied the building, however, all of the businesses provided services to Verizon’s employees and the general public did not have access to the building without permission. During Mintz’s required unpaid lunch breaks, she walked the hallways of the first floor where the cafeteria was located for exercise. During one of these walks, Mintz slipped on a piece of ice and fell on her knee as she was returning to her cubicle.

Mintz had a history of prior knee issues, including surgery. After the fall, she was diagnosed with a knee contusion. She continued treating for her knee condition with steroid injections and prescription medications.

Mintz’s treating physician testified that her fall at work materially aggravated the arthritis in Mintz’s knee. The Deputy Commissioner concluded that Mintz suffered a compensable injury and awarded benefits. The Full Commission affirmed and awarded attorney’s fees pursuant to N.C.G.S. § 97-88.

On November 20, 2012, inMintz v. Verizon Wireless, the Court of Appeals first considered whether the Full Commission erred in concluding that Mintz suffered a compensable injury by accident when she fell while walking for exercise at work during a required, unpaid lunch break. The Court concluded that there was no error and explained that “arising out of” means the accident occurred because of a condition or risk created by the job. According to the Court, the evidence that members of the public were generally not allowed in the building, supported the Commission’s finding that Mintz’s injury was incidental to her employment.

The Court also analyzed “in the course of,” noting that it relates to the time, place and circumstances under which the accident occurred. The “course of employment” begins a reasonable time before work and continues until a reasonable time after work ends. This time includes time during the day for rest and refreshment. Although Defendants argued that this element was not met because Mintz was on an unpaid lunch break, she was required to take the hour long break. With regard to the issue of “place,” although Defendants argued that Verizon did not own, control or maintain the building, the Court concluded that the evidence that all of the other businesses in the building provided services strictly to Verizon employees supported the conclusion that the accident occurred in an area subject to Verizon’s control.  With regard to the “circumstances” element, the Court noted that it is met when an employee is engaging in an authorized activity which furthers the employer’s business. Rest and exercise furthered Mintz’s business by making her a more pleasant customer care representative, similar to cases which recognize the “personal comfort doctrine.”

In addition, the Court also considered the Commission’s findings that Mintz’s fall materially aggravated the preexisting arthritis in her knee. The Court rejected Defendants’ argument that the treating physician’s opinions were merely assumptions and reiterated that the Full Commission is the sole judge of credibility of witnesses and the weight of testimony. Mintz’s physician testified that his opinion that the fall materially aggravated her pre-existing condition was irrespective of prior flare-ups of Mintz’s knee condition.

Finally, the Court upheld the Commission’s award of attorney’s fees pursuant to N.C.G.S. § 97-88, rejecting Defendants’ argument that the imposition of attorney’s fees was premature because attorney’s fees would not be allowed if theCourt of Appeals reversed the Full Commission.

Risk Handling Hint: Although a unique fact scenario, Mintz establishes that the “personal comfort doctrine” will be extended even in circumstances where an employer does not own or maintain the business premises. Risk managers should be aware of the possibility of liability in such circumstances even though an employee is technically “off the clock.”Mintz is receiving national attention in the worker’s compensation arena and may generate additional claims under similar fact scenarios.