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: Bruce Hamilton and Tracey Jones
Brief overview of the legal analysis of COVID-19 workers’ compensation exposure in North Carolina.
COVID-19 cases must be handled and analyzed on a case-by-case basis; however, based upon the current statute and case law, it is unlikely that suspected COVID-19 or actual COVID-19 cases would be considered compensable under either an injury by accident or occupational disease claim theory in North Carolina. With respect to occupational disease claims, North Carolina is an increased risk state, not a positional risk state. Even if the employee can show some increased risk, they will need to prove that any disease they contract actually came from their employment as opposed to some other type of exposure outside of their employment. Because the legal analysis behind the compensability of a COVID-19 diagnosis is very fact specific, please contact one of our attorneys to discuss your scenario in more detail.
How an increase in teleworking may affect workers’ compensation claims in North Carolina.
COVID-19 has reached North Carolina and is impacting our way of living and working every day. Many employers are relying on teleworking to keep their businesses up and running. With this change in location of work space, we are likely to see an increase in home-related injuries. Employees are allowed to work from home; however, they do not have 24/7 workers’ compensation coverage the entire time they are at home. While many will be teleworking, they will also be engaging in personal activities during this unusual period of time. It is going to be very difficult to contradict the employee’s account of when an injury occurred due to the very nature of teleworking.
How do we know the claimant was actually engaging in work at the time of an injury?
Any injuries at home will have to arise out of and in the course and scope of the employment. There is little case law in North Carolina dealing with injuries suffered by employees working remotely; however, these claims are no different from other claims in the level of proof required to establish a compensable injury by accident. Nonetheless, these claims will pose unique challenges for defendants when investigating the facts surrounding these alleged injuries. Defendants will need to thoroughly investigate the allegations and utilize recorded statements as quickly as possible before the employee retains representation. Questions should focus on the injured employee’s activities at the time of the injury, as well as the normal routine they have developed while working remotely.
An employee who is teleworking will still need to prove:
Practice Tips:
During this time of uncertainty, our team is here for you. Please contact one of our workers’ compensation attorneys if you have any questions or concerns.
By: Tracey Jones and Melissa Woodard
There are two categories of workers’ compensation claims: injury by accident and occupational disease claims. Occupational diseases are contracted over time based on the nature of the employee’s job. Some of the most common examples are hearing loss, respiratory diseases from alleged exposure to harmful chemicals or dust, and carpal tunnel syndrome.
North Carolina has two types of occupational diseases: those enumerated, or specifically listed, in N.C.G.S. § 97-53 and those that fall into the catch-all provision of that statute. The plaintiff must prove different criteria than when he or she alleges an injury by accident. If an employee alleges an enumerated occupational disease, he must prove exposure to the harmful agent and causation. Occupational diseases that fall under § 97-53(13), the catch-all provision, require proof of an additional element, increased risk. The plaintiff must prove that the nature of his job put him at a risk greater than the general public of contracting the alleged occupational disease. Briggs v. Debbie’s Staffing, Inc., 812 S.E.2d 706 (2018).
Occupational diseases also differ from injury by accident claims in their filing requirements. In order to confer jurisdiction upon the Industrial Commission over an injury by accident claim, the plaintiff must file a Form 18 within two years of the date of injury or the last payment of medical bills, whichever is later. For an occupational disease claim, however, the plaintiff has two years to file from the first date of disability or from the date a medical provider has provided an opinion causally linking the claimant’s disease and occupational exposure, whichever is later. N.C.G.S. § 97-58. Frequently, this means the plaintiff will have long since left his or her employment with the insured employer and possibly retired altogether.
Another interesting distinction between injury by accident and occupational disease claims is found in N.C.G.S. § 97-57, which describes the employer and carrier liable for the claim. The statute states the employer and carrier on the risk, or responsible for the claim, is the one where the employee was last injuriously exposed to the hazards of the occupational disease. The Court has determined that injurious exposure, however slight, is enough to shift the liability to another carrier. This issue creates a complexity to occupational disease claims that does not generally exist in injury by accident claims. There are often multiple employers and usually many insurance carriers brought into occupational disease claims as defendants because it is difficult to prove where the last injurious exposure may have occurred. As the result of the last injurious exposure standard being so low, often times the last employer and carrier in time ends up being liable despite evidence to the contrary.
Practice Tip: When dealing with an occupational disease claim, be sure to retain counsel as soon as possible and especially if discovery is served, because discovery in these cases can be very complicated and will require a detailed analysis regarding what is relevant and what should actually be produced. Only in very rare cases would it be in the interest of the employer or carrier to accept an occupational disease claim due to the burden of proof on the plaintiff and the last injurious exposure defense outlined in from N.C.G.S. § 97-57. The best practice is to allow defense counsel to take the lead on investigating the claim, in order to evaluate the strength of the last injurious exposure defense as well as answering discovery from the plaintiff.
By: Bruce Hamilton and Elizabeth Ligon
The North Carolina Court of Appeals recently released two decisions that impact the state’s exclusive remedy doctrine. Under N.C. Gen. Stat. § 97-10.1, the North Carolina Workers’ Compensation Act provides an exclusive remedy for unintentional work-related injuries. This provision affords North Carolina employers “limited” liability and allows employers to more accurately calculate their exposures, unlike in the civil liability arena. Injured workers, on the other hand, have certain guaranteed benefits for compensable work injuries, and claims are handled much more efficiently through the North Carolina Industrial Commission.
Historically, there have been few exceptions to the exclusive remedy doctrine. The most notable exception was outlined inWoodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), which permitted employees to pursue civil actions in cases where the employer intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death to an employee, and an employee was injured or killed by that misconduct.
In Seguro-Suarez v. Key Risk Insurance Co., ___ N.C. App. ___, 819 S.E.2d 741 (2018), the plaintiff fell from a significant height and suffered a traumatic brain injury. The claim was accepted as compensable by Key Risk. However, after a period of hospitalization and recovery, Key Risk denied the treating physician’s request for additional medical treatment, a neurological evaluation, and an occupational home therapy evaluation. Key Risk also obtained surveillance of the plaintiff and provided heavily edited footage (from nine hours over several months to 45 minutes) to the plaintiff’s neuropsychologist, which caused him to change his opinion and opine that the plaintiff was exaggerating his symptoms and did not need further treatment.
After several adverse court decisions, Key Risk obtained an independent medical evaluation, which confirmed the validity of the plaintiff’s current condition and ongoing disability. Key Risk then obtained additional surveillance, and Key Risk’s investigator showed local authorities edited footage and convinced them to bring criminal charges against the plaintiff for obtaining workers’ compensation benefits under false pretenses. The plaintiff was arrested, jailed, and ultimately indicted on numerous fraud charges. These charges were ultimately dismissed, and the plaintiff filed a civil suit against Key Risk, its Senior Vice President, two Vice Presidents, the handling adjuster, and the investigator. The Court of Appeals upheld the trial court’s denial of the defendants’ motion to dismiss the plaintiff’s malicious prosecution, abuse of process, and unfair and deceptive trade practices claims, finding that these claims were only “tangentially” associated with his workers’ compensation claim. The Court noted concern that, in the extreme, an insurer could “hire an assassin to kill an insured employee” and try to hide under the protection of the exclusivity provision.
In the second case, Jackson v. The Timken Co., ___ N.C. App. ___, ___ S.E.2d ___ (2019), the plaintiff suffered a stroke at work and was seen by the staff nurse, a licensed RN. The staff nurse took the plaintiff’s blood pressure, asked him to complete a drug screen authorization form numerous times, obtained hair samples for a drug screen test, and sent him home with instructions to follow up with his primary care provider. Shortly thereafter, the plaintiff collapsed in the parking lot of his primary care provider’s office, and was rushed to the hospital. He suffered permanent injuries.
The plaintiff initially filed a workers’ compensation claim with the Industrial Commission. He also filed a civil action in Superior Court while waiting for the Industrial Commission to issue a decision, alleging he was negligently diagnosed and treated by the staff nurse. The Superior Court asserted subject matter jurisdiction over the case, and denied the defendants’ motion to dismiss for lack of subject matter jurisdiction. The Deputy Commissioner at the Industrial Commission subsequently denied the plaintiff’s claims on the ground that the plaintiff did not suffer a compensable injury by accident. The plaintiff did not appeal the denial of his workers’ compensation claim.
The Court of Appeals upheld the Superior Court’s decision to assert subject matter jurisdiction, contradicting the North Carolina Supreme Court’s prior decision holding that the Act “provides the exclusive remedy when an employee is injured in the course of his employment by the ordinary negligence of co-employees.” Abernathy v. Consolidated Freightways Corp. of Delaware, 321 N.C. 236, 362 S.E.2d 559 (1987). The Court attempted to distinguish Abernathy on the basis that, in this case, the plaintiff was alleging that his co-worker had breached a special duty for medical professionals when she rendered care, and the plaintiff did not suffer a compensable injury by accident.
Taken together, these two cases appear to carve out additional exceptions to the exclusive remedy doctrine, and could potentially expose employers to additional civil liability.Segura-Suarez allowed a civil action when certain tort claims were only “tangentially” associated with a workers’ compensation claims, although it remains to be seen whether the decision will be limited to the case’s particularly egregious facts. Jackson not only appears to have created an exception in cases involving potential medical malpractice committed by an employer’s on-site medical staff, but could also be read to suggest a plaintiff may be able to successfully pursue a civil action if his claim is deemed not compensable under the Workers’ Compensation Act. The attorneys at Teague Campbell will continue to monitor the courts’ handling of the exclusive remedy doctrine. Please reach out to a member of ourworkers’ compensation team with any questions.
Written By: Scott Farwell and Latasia Fields
In the world of insurance, it is inevitable that policies will be cancelled. As you can imagine, there is nothing worse than receiving a claim on a policy well after the effective date of cancellation. What should be a simple, clear cut denial of liability can quickly spiral into an expensive defense effort resulting in payment on the cancelled claim. If this has never happened to you you’re probably wondering how something like this is even possible. The answer is simple failure to comply with statutory requirements for effective cancellation.
There are several statutes addressing the cancellation of insurance policies, and the controlling statute is determined by the type of policy being cancelled. For example, cancellation of a workers’ compensation insurance policy is governed by N.C.G.S. § 58-36-105, but cancellation of a homeowners’ insurance policy is governed by N.C.G.S. § 58-41-15. Regardless of the type of policy being cancelled, the North Carolina Supreme Court has long established the principle that failure to comply with the statutory requirements for cancelling an insurance policy renders the cancellation ineffective.Pearson v. Nationwide Mut. Ins. Co., 325 N.C. 246, 382 S.E.2d 745 (1989). Compliance with statutory requirements may seem straightforward but there are a few common pitfalls that prevent effective cancellation and create liability where there should be none. Some of these include failure to provide proof of mailing such as a green card from certified mail, actual notice and/or receipt of notice by the insured.
Recently, the North Carolina Court of Appeals addressed the requirement of actual notice and/or receipt of notice by the insured for effective cancellation of insurance coverage. InHa v. Nationwide Gen. Ins. Co., Nationwide issued Plaintiffs a homeowner’s insurance policy prior to an inspection of the home. During the inspection of the home, several hazards were discovered which led to Nationwide’s decision to cancel the policy. In keeping with company procedures, a letter was sent to the Plaintiffs outlining the hazards noted during the inspection and the steps necessary for the Plaintiffs to remedy these issues and reinstate their homeowner’s insurance policy. Plaintiffs took no steps to remedy the hazards and the policy was not reinstated. Nationwide refunded Plaintiffs’ pro-rata share of the premium paid and ceased deducting premium payment from the Plaintiffs’ bank account. Approximately six weeks after the cancellation, Plaintiffs’ home was destroyed by a fire. Plaintiffs filed a claim, which was denied by Nationwide who argued Plaintiffs’ home was not insured as the policy had been cancelled. The trial court agreed with Nationwide and dismissed Plaintiffs’ claims.
Ultimately, the Court of Appeals reversed the trial court decision, finding that N.C.G.S. § 58-41-15 required actual delivery to and/or receipt of the notice of cancellation by the insured. The Court reasoned that as Nationwide only provided “proof of mailing” which the Plaintiffs alleged they did not receive, Nationwide failed to provide Plaintiffs sufficient notice of cancellation in compliance with the statute. According to the Court, N.C.G.S. § 58-41-15(c) required Nationwide to furnish notice of cancellation which meant something more than proof of mailing.
Risk Handling Tips: This case creates in the insurer an obligation to not only send notice of cancellation to the insured, but also to prove the insured actually received that notice if the insurer intends to deny coverage on the grounds of cancellation of the policy. Here are some tips on how to ensure that your company is effectively cancelling policies. First, know the statute that governs cancellation of the type of policy you are seeking to cancel. Second, review your mailing procedures to determine how your cancellation notices are mailed. If you are using certified mail, be sure there is a system in place to receive and maintain the return receipts. If you are sending notices electronically, develop a system to maintain those communications as well. Although these additional precautions won’t guarantee success in litigation over denied coverage, you will be in a far better position having this information. Feel free to reach out to ourinsurance coverage team with any questions.
Teague Campbell attorneys Kyla Block and Melissa Woodard recently received a favorable decision from the Full Commission in a nuanced disability argument. Melissa argued the case before the Full Commission in February 2019 and the Commission’s Opinion and Award was filed July 2019. The claim involved a high-level employee at a production plant who sustained a compensable back injury, which necessitated a lumbar fusion in 2013. The employee was out of work for several months, then returned to work only to sustain a second back injury. The second injury also required surgery, and the employee never physically returned to work thereafter. The employee was able to do some work remotely throughout the course of the claim, and the employer continued paying the employee’s full salary until 2017. At the initial hearing, the plaintiff argued he was not disabled until he started earning lower wages. Under N.C.G.S. § 97-29, an injured employee is only entitled to 500 weeks of benefits unless he qualifies for extended benefits. Melissa and Kyla argued the plaintiff was disabled on the date of his first surgery, which was approximately 219 weeks before the plaintiff’s alleged first date of disability in 2017. The Full Commission found in favor of Defendants, deciding that despite the fact that plaintiff was paid his full salary, his actual capacity to earn wages on the open job market was diminished, so he was disabled under N.C.G.S. § 97-2 beginning in 2013 when he underwent the first lumbar fusion surgery.
Considering plaintiff’s high compensation rate, the 219 weeks defendants will not have to pay disability benefits will be significant savings for the carrier in this case. Plaintiff may appeal, but regardless, these facts will create an issue of first impression before the appellate courts in North Carolina, which will be important to the jurisprudence of our State’s workers’ compensation law.
By: Tracey Jones and Chris Stipes
The increasing trend of employers to provide on-site medical staff can have numerous benefits for both employees and employers. Due to convenience, employees may be more likely to utilize the on-site medical services, leading to quicker identification of health issues and easier management of health care needs and costs for both parties. Employees may spend less time away from work dealing with medical issues, leading to fewer insurance claims. Essentially, on-site medical staff seems to encourage prevention, which is an overall cheaper and more effective method of health care. Unfortunately, a recent Court of Appeals decision has created concern over liability exposure for the employer.
The Workers’ Compensation Act has frustrated North Carolina employers because there is no “fault base” analysis in cases, however, the Act has afforded North Carolina employers “limited” liability in cases and allows employers to calculate their exposures with a much needed accuracy that is hard to obtain in the civil liability arena.
This benefit has been strained in Jackson v. The Timken Co., a recent decision from the North Carolina Court of Appeals published in May, 2019. The Court allowed a Plaintiff in a denied workers’ compensation claim to bring an action in civil court, potentially spoiling the exclusive remedy doctrine.
Plaintiff suffered a stroke while at work. His supervisor noticed Plaintiff was having difficulty completing work tasks and escorted him to the occupational health nurse (with 41 years of experience) who completed a physical examination of Plaintiff. Plaintiff walked without assistance, responded appropriately to questions, exhibited no weakness, followed commands, and had no change in speech, balance or facial feature. Plaintiff’s wife was called to pick him up. Plaintiff collapsed in the parking lot of his primary care provider’s office and was rushed to the hospital by EMS. He survived, but suffered permanent injuries.
Plaintiff first filed a workers’ compensation claim with the Industrial Commission. The parties stipulated that each party was bound by and subject to the North Carolina Workers’ Compensation Act, and noted the Industrial Commission had subject matter jurisdiction. While Plaintiff was waiting for the Industrial Commission to issue a decision, Plaintiff filed a complaint in Gaston County Superior Court. The employee alleged he was negligently diagnosed and treated by the on-site nurse. The Deputy Commissioner issued an Order denying Plaintiff’s workers’ compensation claim because Plaintiff did not suffer a compensable injury by accident, and Plaintiff did not appeal the Order. Defendants then filed a Motion to Dismiss for lack of subject matter jurisdiction in the Superior Court, which was denied. Defendants appealed.
The main issue is whether the Superior Court had jurisdiction over Plaintiff’s claim when the claim has already been heard and denied by the Industrial Commission because it does not fall under the scope of the Act. Unfortunately, the Court held that if the Industrial Commission lacks exclusive jurisdiction to hear a claim that occurs in the course of one’s employment, a trial court does not err in asserting subject matter jurisdiction over the claim.
In upholding the Superior Court’s decision to assert subject matter jurisdiction over this case, the Court contradicted the Supreme Court’s decision that the Act “provides the exclusive remedy when an employee is injured in the course of his employment by the ordinary negligence of co-employees.” Abernathy v. Consolidated Freightways Corp. of Delaware, 363 S.E.2d 559 (N.C. 1987). The Court tried to distinguish Abernathy on the basis that the Plaintiff alleged his co-worker was liable for breaching N.C.G.S. §90-21.12, our statute establishing a special duty for medical professionals when rendering care, and because, unlike in Abernathy, Plaintiff did not suffer a compensable injury by accident.
These weak distinctions do not help employers in North Carolina feel better about the Court’s analysis. Typically the only exception to the exclusive remedy doctrine happens when an employer’s conduct is intentional and substantially certain to cause serious injury or death, which is not the case here. The Court’s analysis on this question is concerning for two reasons. First, the Court seems to carve out an additional exception for claims asserted under the medical malpractice statute, which potentially increases exposures for employers that keep medical staff on site. Second, the Court seems to suggest that whenever a claim is denied by the Industrial Commission for not meeting the elements of a compensable claim, the Plaintiff has a second chance at a remedy by filing a civil suit. That seems to defeat the purpose of the exclusive remedy provision and opens the floodgate for ordinary workers’ compensation claims being heard in civil courts.
Risk Handling Tips: In light of this case, North Carolina employers must ask themselves whether having an occupational health professional on site to help their employees is worth the risk of being sued in civil court, which inevitably results in higher exposures. This Opinion was unanimous, but a Petition for Discretionary Review has been filed with the North Carolina Supreme Court.
Written By: Courtney Britt
Discussion of workplace harassment reached a fever pitch last Fall when media reports streamed seemingly endless claims against Hollywood moguls and corporate giants alike. The #MeToo movement has added force to the discussion, no doubt leaving employers feeling exposed.
Although harassment allegations are often handled in civil courts, certain allegations can be litigated in workers’ compensation claims. Decisions in the past few years by our appellate courts and federal courts interpreting North Carolina law seem to indicate that whether alleged workplace harassment will be treated exclusively through workers’ compensation may depend on how it is pled.
It is well established in North Carolina that an injured worker can be compensated under the North Carolina Workers’ Compensation Act (“the Act”) for a mental injury. Jordan v. Cent. Piedmont Cmty. Coll. This is true for both mental injuries resulting from a compensable occupational disease or an injury by accident. See id; Pulley v. City of Durham.
Our Court of Appeals considered the viability of a workplace harassment claim inHogan v. Forsyth Country Club Co., decades before #MeToo. Hogan involved former female employees of the defendant country club who brought a civil lawsuit alleging that a chef at the club was verbally abusive, made sexual advances and sexually derogatory remarks. Their claims included intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).
On appeal, the club argued that the employees’ claims for IIED were barred by the exclusivity provision of the Act. The Court of Appeals disagreed, noting that the damages alleged by the employees included losses that would not be covered under the Act and that the wrongs alleged fell outside the scope of workers’ compensation.
In a more recent case, the Court of Appeals reached a different outcome in Shaw v. Goodyear Tire & Rubber Co. Shaw claimed she was harassed by her male supervisor, including verbal abuse and intimidation, but the court specifically noted that no physical contact or sexual harassment was alleged. Shaw filed a civil complaint including claims for wrongful discharge and NIED, the only claims that went to trial.
After a jury verdict in Shaw’s favor, her employer appealed, arguing that the trial court lacked subject matter jurisdiction over Shaw’s NIED claim because it fell exclusively under the Act. The Court agreed, vacating the jury verdict, explaining that Shaw’s central allegations in the NIED claim were that she complained to her employer about the harassment by her male supervisor; her employer negligently handled her complaint; and her employer’s negligence led to emotional distress and, eventually, her wrongful discharge. The Court also specifically declined to extend the exception, allowing employees to bring a civil action against a co-employee for willful, wanton and reckless conduct, to employers accused of similar conduct.
Interestingly, the Court also concluded Shaw’s NIED claim was an “accident” under the Act which arose out of and in the course and scope of her employment. However, it noted this holding is limited to the unique circumstances of the case, emphasizing that it was “crucial” to Shaw’s allegations that the claimed emotional distress was due to the employer’s mishandling of her claims, not the actual harassment by her supervisor itself.
Since Shaw, courts reviewing workplace harassment claims have come down on both sides. InLingle v. Pain Relief Centers, P.A. (unpublished), three former employees of a medical practice alleged a physician at the practice sexually harassed them and had inappropriate physical conduct, including NIED claims. The defendants argued, in part, that the employees’ claims for NIED were barred by the exclusivity provision of the Act.
The federal court reviewing the case disagreed, ruling that the employees’ NIED claims could proceed to trial. It emphasized that the emotional injuries alleged by the employees were unrelated to their employment and, quotingHogan, that sexual harassment was a risk, “to which the employee could be equally exposed outside the employment.”
The federal court in Hall v. Rockinham County (unpublished), reached the opposite conclusion regarding an employee’s NIED against her employer. Hall was employed as the Director of 911 Communications and alleged harassment by her supervisor, making several employment law claims and NIED against her employer and supervisor. The Court ruled that the NIED claim against Hall’s employer was exclusively under the jurisdiction of the Industrial Commission and should be dismissed from civil court, stating that Halls’ injury arose out of her employment, which included the risk that her employer would not properly supervise her workplace or handle her complaints. However, multiple other claims were allowed to proceed in civil court.
A federal court reached a similar outcome in Baldwin v. Trademen International, Inc. (unpublished). Baldwin involved claims by two employees that their supervisor sexually harassed them and created a hostile work environment. The Court held that the employees’ negligence claims directly against their employer were barred by the exclusivity provision. In its ruling, the Court explained that, based on Shaw, negligence claims based on an employer’s mishandling of sexual harassment complaints falls within the Act.
Reviewing Shaw, Lingle, Hall and Baldwin offers employers guidance on which allegations a civil court will deem workers’ compensation claims. If a court concludes that the claim is one of negligent mishandling of harassment complaints or investigation by the employer, it is more likely to be within the exclusive jurisdiction of the Industrial Commission. However, civil claims based on the negligence of a co-employee or injuries alleged to be caused by the harassment itself (as opposed to the mishandling of complaints) may be allowed to proceed in civil court. Employers are advised to consult their employment law and workers’ compensation attorneys when workplace harassment issues arise to determine the best defense strategy.
Written by: Melissa Woodard
With prescription drug and opioid addiction on the rise in America and an estimated 20 million Americans in need of treatment for drug or alcohol addiction, the prevalence of drug and alcohol use in the workplace is a serious concern for employers.
As you might imagine, working under the influence of an intoxicating substance can increase the risk of work-related injuries, especially for laborers, drivers, and heavy-machinery operators. The North Carolina Workers’ Compensation Act provides an absolute defense under N.C.G.S. § 97-12 against workers’ compensation claims when the employee’s injury or death was proximately caused by intoxication where the employer did not supply the intoxicant. There is also a complete defense when the employee was under the influence of a controlled substance except when the substance was prescribed by a practitioner. The statute defines “intoxication” and “under the influence” as consuming a sufficient quantity of the intoxicating beverage or controlled substance to cause the employee to lose normal control of his bodily or mental faculties such that he was appreciably impaired at the time of the injury. This is similar to the standard for impairment in driving while impaired (DWI) criminal offenses.
Appreciable impairment is difficult enough to prove for law enforcement even with standardized field sobriety tests and breathalyzer results. In workers’ compensation claims, we often have far less scientific and circumstantial evidence of impairment. Blood and breath may not be tested after a work-related injury and co-workers cannot always provide specific eye-witness testimony about the signs of impairment. Even if a blood or urine drug screen is done, the evidence may be inconclusive as to impairment. Importantly, unlike alcohol, many illicit and prescription drugs remain in the blood or urine long after the intoxicating effects have subsided.
The Court of Appeals held in Moore v. Sullbark Builders, Inc. that the mere presence of cannabinoids, or the chemical compound in marijuana, without a specific concentration in an employee’s urine is insufficient to prove impairment. 198 N.C. App. 621, 680 S.E. 2d 732 (2009). A toxicologist testified that even if the employee had used marijuana before work that day, the intoxicating effects would have subsided by the time the accident occurred, to say nothing of the fact that it is well-recognized in the scientific community that positive urine drug screen results for cannabinoids cannot establish impairment.Id. The same is true for many illicit and prescription controlled substances. So, even if a urine drug screen is performed and the results show illicit or prescription drug use, this alone is not enough to provide a defense to the claim under N.C.G.S. § 97-12. Expert medical testimony will often be required to establish intoxication in addition to a drug screen.
Alcohol impairment presents different challenges. The presence of alcohol in the blood or urine is directly correlated with its intoxicating effects. While this can be a helpful fact, it is also a problem. If a person has a blood alcohol concentration that is at or above the recognized limit indicating appreciable impairment while driving, which is 0.08 mg/dL, the Court has held the person is “intoxicated” under § 97-12. Gratz v. Hill, 189 N.C. App. 489, 658 S.E.2d 523 (2008). However, alcohol metabolizes, or is processed, very quickly in the body, at a rate of 0.015 mg/dL per hour for most people. This means that if an employee has a blood alcohol concentration of 0.10 mg/dL at the time of the accident, which is well above the legal limit, his or her blood or breath may test below the legal limit just 90 minutes later. Expert testimony is required to extrapolate the impairment level when a significant period of time has passed between the accident and the test for alcohol concentration.
Also, co-workers and employers are not usually specifically trained to recognize the telltale signs of impairment. They may not consider their fellow employee is intoxicated before an injury, and even if they do, workers’ compensation hearings are often months if not years after the accident. Testifying under oath about specific details such as this can prove challenging without proper notetaking or witness statements taken at or near the time of the accident. Therefore, prompt investigation of the claim is essential, including interviewing witnesses, gathering their statements and obtaining the injured worker’s recorded statement.
Even if an employer can prove the worker was intoxicated or appreciably impaired at the time of the accident, they must also prove that the impairment was “more probably than not a proximate cause of the accident and resulting injury.” Gaddy v. Anson Wood Products, 92 N.C. App. 483, 374 S.E.2d 477 (1988). Again, expert medical evidence will likely be required to demonstrate that the actual injury complained of was proximately caused by the employee’s intoxication. For example, if an intoxicated employee is injured in a motor vehicle accident while riding as a passenger, it is unlikely that employee’s injury was proximately caused by the intoxication. Simply put, the intoxication and the injury must be closely connected.
There are some practical steps employers can take to maximize workplace safety and minimize liability for injuries resulting from employee intoxication. First, it is important to institute a workplace policy that no alcohol or drugs other than those prescribed by a physician are to be consumed on the job or before work begins for the day. Second, encourage employees to report suspicious behavior that may indicate intoxication to a supervisor. Signs include red glassy eyes, slurred speech, unsteady gait, slow reaction time, and inability to divide one’s attention between two simultaneous tasks. Third, in some instances, employers can require testing for drugs and alcohol upon the report of a workplace injury. It is important to keep in mind, however, that the process for drug and alcohol testing is heavily regulated in North Carolina, so the advice of an employment law attorney is imperative before implementing any policies on drug testing. Workplace policies are not failsafe, but can be extremely helpful evidence in defending against workers’ compensation claims for intoxicated claimants. Employers seeking to enhance their drug free workplace and safety policies are encouraged to contact their employment law and workers compensation counsel for further advice.
Compiled by: Kyla Block
Commissioner Myra L. Griffin was confirmed to the Full Commission on June 29, 2018 to fill the unexpired term of former Commissioner Linda Cheatham. Governor Cooper appointed Commissioner Griffin as an emergency appointment to allow her to act as a Full Commissioner prior to her confirmation by the legislature. Commissioner Griffin will serve the remainder of former Commissioner Cheatham’s term which ends in 2022. Thereafter, she will then be eligible for reappointment to one six year term.
Deputy Commissioner Robert Harris had also been appointed by Governor Cooper to join the full Commission to replace Commissioner Nance, whose term expired on June 30, 2018, but Deputy Commissioner Harris was not confirmed by the legislature. He will remain a Deputy Commissioner for the remainder of his term. After his term ends, Deputy Commissioner Harris could be reappointed to another six year term as a Deputy by the Chair of the Commission.
The position on the Full Commission filled by former Commissioner Nance remains open. The legislature is currently out of session and any replacement is more likely to be announced in January, but Governor Cooper could appointment someone to fill the opening on an emergency basis and that individual would then be subject to confirmation when the General Assembly comes back in to session.
Ashley M. Moore has been appointed as a Deputy Commissioner in Raleigh. Ms. Moore served as a law clerk to Chair Allen, former Commissioner Linda Cheatham, and Vice-Chairman Yolanda K. Stith.