State News : North Carolina

Did you know that, effective June 1, 2018, the Industrial Commission’s Rules were recodified from Title 04 Chapter 10 of the North Carolina Administrative Code to Title 11 Chapter 23 of the Administrative Code? According to the NCIC’s website, all references and citations to an Industrial Commission Rule on or after June 1, 2018, should use the new title and chapter citation. The recodification is part of the transfer of the Industrial Commission from the Department of Commerce to the Department of Insurance.

Please contact our Workers' Compensation Team with any questions about this new procedure.

Written by: S. Scott Farwell

Recent rulings from The North Carolina Supreme Court and Court of Appeals have set Workers’ Compensation Defendants somewhat adrift regarding the burdens of proof relating to disability. With this uncertainty, and to counter the testimony historically provided by Plaintiffs seeking indemnity benefits, Defendants involved in complicated disability disputes should consider early involvement of a vocational expert well in advance of hearings. Otherwise, Defendants risk even strong defenses turning sour, and the higher ranges of exposure being reached.

Recall, first, the matters of Hilliard and Russell historically provided a meaningful structure to evaluate a Plaintiff’s burden of proof. Hilliard v. Apex Cabinet Co., 54 N.C. App. 173, 282 S.E.2d 828 (1981), rev’d on other grounds, 305 N.C. 593, 290 S.E.2d 682 (1982); Russell v Lowes Prod. Distribution, 108 N.C. App 762, 425 S.E.2d 454 (1993). Those matters established that proving disability requires specific and objectively supported persuasive evidence produced by Plaintiff.

With the advent of Wilkes v City of Greenville, ____ N.C. ____, 799 S.E. 2d 838, (2017) , in combination with Neckles v. Teeter, No. COA 16-569-2, 2018 WL 944070, (N.C. Ct. App. Feb. 20, 2018) and Adame v. Aerotek, 809 S.E.2d 922 (N.C. Ct. App. Feb. 20, 2018) however, the evidentiary structure provided by Hilliard and Russell has somewhat unraveled. Wilkes is the landmark case decided by the Supreme Court which held that Plaintiff could prove disability in ways outside of the Russell framework and suggested that the Industrial Commission may rely upon competent lay testimony to prove disability. In Neckles, the Court of Appeals held that the Full Commission did not properly address plaintiff’s wage earning capacity in light of his pre-existing and co-existing conditions. In Adame, the Court of Appeals held that Defendants failed to meet their shifted burden to prove Plaintiff was not disabled. Defendants in Adameutilized a vocational expert who performed a labor market survey and offered testimony; however the expert had limited knowledge of Plaintiff’s education and qualifications. Plaintiffs may argue these newer rulings reduce their burden of proof to a burden of production, which, if met, shifts the burden of proof to Defendants to disprove disability.

While this potential burden shifting is, itself, concerning, the time needed for Defendants to obtain persuasive evidence is, perhaps, even more harrowing. Following notice of a request for hearing, Defendants typically have four to six months to gather and present evidence before the case will be heard. This timeframe can be further reduced depending on when the file is assigned to defense counsel and whether any discovery disputes arise between the parties.

Since Plaintiffs may now be able to meet their burden and demonstrate a job search is futile by offering evidence that their age, education, and experience render future job searches futile, Defendants must spend the limited months available to them before hearing to locate jobs the Plaintiff is actually capable of obtaining given both his work-related and non-work related limitations and present that evidence in a format which will persuade a Deputy Commissioner to rely on it over Plaintiff’s own testimony. This can be challenging given that the Workers’ Compensation Act must be liberally interpreted in Plaintiffs’ favor.

Wilkes, Neckles and Adame leave Defendants wondering how to approach this developing dilemma. Utilization of a well-qualified vocational expert will be essential in many cases, but prudent employers should heed the guidance provided by these recent decisions.

The Industrial Commission has indicated a willingness to consider labor market surveys, but the above cases demonstrate that a labor market survey alone may not be enough. Employers who recognize the need for vocational evidence and retain an appropriate expert must also prepare the expert to both obtain an appropriate labor market survey and offer well-informed testimony at a hearing. This requires Defendants to obtain comprehensive information about Plaintiff’s pre-existing and co-existing limitations in discovery and to ensure the vocational expert has reviewed and considered this information in preparing his or her report and rendering opinions. Satisfying these standards will require early diligent planning by Defendants well in advance of hearing, but appears inevitable in the post-Wilkes era.

Please contact any member of our Workers’ Compensation team with questions or to discuss these issues in more detail.

Written by: Matt Marriott

Every employer has been there before.  You hire a new employee and everything is going smoothly, until one day you receive a letter from the North Carolina Department of Revenue compelling you to withhold an amount from your new employee’s paychecks to satisfy an outstanding tax obligation the employee owes.  In the boilerplate of that garnishment letter is language stating the employer will be held responsible for the employee’s tax obligation in the event the employer fails to withhold and pay the garnishment amount.  Knowing that you never want to ignore a letter from the state or federal department of revenue, you comply with the letter and begin withholding the tax lien amount.  But what happens in cases where the employee with the tax obligation was injured at work and is receiving ongoing temporary total disability benefits instead of a normal salary check?  Must the defendants withhold a weekly amount from each TTD/TPD check or from a settlement to satisfy the outstanding tax lien?

Though the North Carolina Industrial Commission and Appellate Courts have not directly ruled on this issue, some plaintiffs’ counsel have argued that, based on state and federal statutes, the Department of Revenue cannot recover a tax lien from weekly TTD/TPD checks or from a lump sum settlement.

N.C. Gen. Stat. § 97-21 provides in relevant part “[n]o claim for compensation under this Article shall be assignable, and all compensation and claims therefor shall be exempt from all claims of creditors and from taxes.”

The Federal Tax Code also includes a provision that seems to exempt workers’ compensation benefits from tax liens.  § 6331(a) of the U.S. Tax Code provides the government authority to garnish the wages of employees who have failed to pay their taxes; however, it carves out a few exemptions from that general rule.  § 6331(a) states as follows:

“If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax.”

Section 6334(a)(7), which sets out specific exemptions from the wage garnishment rule cited above, specifically states that workers’ compensation benefits cannot be garnished to satisfy outstanding tax obligations.  Therefore, the U.S. Tax Code seems to suggest that the government is prohibited from asserting tax liens against workers’ compensation benefits.

While the statutes above seem to support that neither the N.C. nor U.S. Department of Revenue can assert a tax lien against workers’ compensation benefits, there are a few Appellate cases in North Carolina that have allowed parties that would seem to qualify as “creditors” under § 97-21 to, nevertheless, assert liens against workers’ compensation benefits.  In State of North Carolina v. Miller, the Court of Appeals held that N.C. Child Support enforcement was not barred by N.C. Gen. Stat. § 97-21 from recovering child support payments out of a plaintiff’s weekly workers’ compensation benefits. SeeState v. Miller, 77 N.C. App. 436, 438 (1985) (holding Child Support Enforcement was not barred by § 97-21 because “the obligation to support one’s children is not a ‘debt’ in the legal sense of the word.”)  Similarly, in Sara Lee Corp. v. Carter, the North Carolina Supreme Court allowed a Trial Court Order to stand which declared that the plaintiff’s weekly workers’ compensation benefits were to be held in constructive trust for the benefit of Sara Lee Corporation, since the Trial Court found the plaintiff had defrauded Sara Lee and breached the fiduciary duties he owed Sarah Lee, entitling Sarah Lee to damages from plaintiff worth $322,729.20. See Sara Lee Corp. v. Carter, 351 N.C. 27 (1999).

Because the aforementioned cases allowed parties to recover what seemed like “debts” from workers’ compensation benefits, it is unclear how North Carolina or federal courts would treat a case addressing whether the N.C. or U.S. Department of Revenue could assert a tax lien against a plaintiff’s workers’ compensation benefits.

Practice Tip: In situations where the Department of Revenue sends defendants a letter asking defendants to garnish a plaintiff’s wages, the best approach is to see if the plaintiff will consent to the wage garnishment.  Because the plaintiff will accrue interest on any outstanding tax obligation the longer he/she fails to pay it, there is a significant benefit to the plaintiff in having the tax debt paid off.  However, if the plaintiff will not consent to wage garnishment to satisfy the tax lien, defendants may need to seek guidance from the Commission on how to proceed.   Where disputed tax lien or garnishment issues arise, employers and insurance carriers should consult with defense counsel to determine defendants’ obligations.

As the state of North Carolina continues its efforts to combat the opioid crisis, the Rules Review Commission, part of the North Carolina Industrial Commission, approved nine rules regarding opioids, prescriptions, and pain management in workers’ compensation claims that go into effect today, May 1, 2018. The rules are specifically meant to address problems arising from the intersection of the opioid epidemic and workers’ compensation claims. They are also meant to ensure that injured workers are provided the services and care intended by the Workers’ Compensation Act and medical costs are adequately contained.

No letters of objection were received during the preliminary period. The Rules Review Commission made some minor technical changes; however, they did not change the substance. The final version of the rules can be found here. The Industrial Commission also adopted a Companion Guide that will assist in implementing and understanding these Rules. The Guide can be found here on the Opioid Rules Resource Page.

Please reach out to a member of our workers’ compensation team with any questions or to discuss this issue in more detail. Our team also released a brief overview of the content and potential implications of the Rules, which you can read here.

Written by: Matt Flammia

The Court of Appeals recently held that Plaintiff’s lay testimony was insufficient to establish increased risk in an occupational disease claim.

In Briggs v. Debbie’s Staffing, Inc., Plaintiff worked as a Ceramic Technician, which required him to work a portion of his time on a Voeller machine.  The Voeller machine mixes water with various dry ingredients and creates an alleged dusty environment. Following Plaintiff’s termination for attendance related issues, Plaintiff filed a Form 18, alleging he developed COPD and asthma as a result of working as a Voeller technician.  During post-hearing medical depositions, Plaintiff’s medical expert initially opined that Plaintiff’s asthma was likely caused by substances he was exposed to at the employer’s facility.  However, Plaintiff’s medical expert conceded that he was unaware that Plaintiff frequently smoked cigarettes, had a history of marijuana use, had prior complaints of wheezing, previously treated for allergies with albuterol, and was provided a respirator mask that filtered 95% of air born particles. Defendants’ medical expert opined that Plaintiff’s asthma likely pre-dated his employment, but opined that his asthma was likely aggravated during his employment.

The Deputy Commissioner determined that Plaintiff met his burden to prove a compensable occupational disease, but the Full Commission reversed, holding that Plaintiff had failed to present medical evidence that the conditions of his employment placed him at a greater risk of contracting asthma than members of the general public.

Plaintiff argued that medical expert evidence was not necessary because a determination that an individual contracted asthma due to working in a dusty environment could be deduced by common sense and is one that a lay person could make.  However, the Court disagreed and found that questions regarding the root cause of a diagnosed disease could only be answered by medical experts.  Regardless of how a plaintiff proves causation or aggravation of an occupation disease, he must also establish that the employment placed him at a greater risk for contracting the condition than the general public. Applying the Rutledge test, the Court determined that Plaintiff merely demonstrated that the dusty environment aggravated the pre-existing asthma condition, which established a causal connection between the disease and Plaintiff’s employment.  However, Plaintiff failed to show that his employment exposed him to a greater risk of contracting the asthma than the general public since he failed to provide expert medical evidence to establish this element of his claim.

Practice Tip:  Briggs is a reminder of the importance of obtaining expert evidence when complicated medical issues are in question.  In most occupational disease claims, the plaintiff must establish both a causal relationship between the plaintiff’s employment and the subject disease as well as that plaintiff was at an increased risk of contracting the disease due to the employment compared to the general public.  Contact our Workers’ Compensation team if you have any questions or to discuss this case further.

Written by: Elizabeth Ligon

The Court of Appeals recently released two decisions that analyzed issues relating to disability – specifically, the burden of proving futility – post-Wilkes v. City of Greenville. In Adame v. Aerotek, an unpublished decision, Plaintiff sustained a low back injury in June 2013. After receiving conservative treatment with multiple doctors, Plaintiff was ultimately released with permanent work restrictions of no lifting over 40 pounds, with frequent lifting and carrying of objects weighing up to 25 pounds. Plaintiff sought ongoing temporary total disability benefits, but the Industrial Commission found he was not entitled to indemnity benefits or vocational assistance because Plaintiff failed to meet his burden of proving disability. Plaintiff appealed to the North Carolina Court of Appeals.

On appeal, the Court of Appeals noted Wilkes clarified which party had the burden of proving disability. Once a plaintiff meets the burden of establishing disability, the burden then shifts to defendants to show that suitable jobs are available, and that the plaintiff was capable of obtaining a suitable job, considering both his or her physical and vocational limitations. The Court reiterated that a plaintiff is not required to produce expert testimony in order to prove futility. While the Court acknowledged that Plaintiff had the initial burden of proving disability, the Court also referred to the burden as a “burden of production.” (emphasis added)

In Adame, the plaintiff was a 55-year-old man from Mexico who attended “something like high school” in Mexico until the age of 12. The Court of Appeals specifically concluded that Plaintiff met his “burden of production of evidence of futility” by presenting evidence of his age, lack of education, lack of vocational training, limited fluency in written English, and lifting restrictions. Therefore, the burden shifted to Defendant to show that suitable jobs were available to Plaintiff, and that Plaintiff was capable of obtaining a suitable job in light of his physical and vocational limitations. Defendant relied on the testimony of a vocational expert who had prepared labor market surveys in order to meet their burden. However, Defendant’s vocational expert had very limited knowledge of Plaintiff’s education and qualifications, and the Court found Plaintiff could not meet the minimum qualifications of most of the jobs that were identified as suitable. Therefore, Defendant had not met its burden, and the Industrial Commission erred in relying on the vocational expert’s testimony.  Also the case was remanded for the Commission to determine whether Plaintiff’s incapacity to earn was caused by his work injury, the third prong of Hilliard.

In the second case, Neckles v. Harris Teeter, a published decision, Plaintiff was 68 years old at the time of hearing and was originally from Grenada. His prior employment history consisted of working as a meat cutter, which required lifting and moving up to 100 pounds on a regular basis. He sustained an injury to his back, right hip, and right extremities in 2009 while attempting to move a box of meat. In 2010, he underwent an FCE and demonstrated the ability to perform in the light physical demand category. In 2011, a vocational rehabilitation specialist opined that it would be “difficult” to place Plaintiff in the open job market on a full-time basis due to his work history, limited transferable skills, age, and lack of computer knowledge. No additional testing or analysis was completed.

In 2014, Defendants requested a hearing, contending Plaintiff was no longer disabled. The deputy commissioner awarded Plaintiff ongoing indemnity benefits on the grounds of futility. On appeal, the Full Commission reversed in part, concluding Plaintiff had failed to meet his burden of proving futility. The Court of Appeals reversed. Defendants appealed to the Supreme Court, who remanded the case to the Court of Appeals for reconsideration in light of Wilkes.

On remand, the Court of Appeals concluded that the Commission failed to make necessary findings regarding the effect of Plaintiff’s compensable injury on his ability to earn wages. The Court stated that if a plaintiff can show total incapacity for work, he is not required to also show that a job search would be futile. Here, Plaintiff offered evidence of numerous physical and vocational limitations, including his work history, limited transferrable skills, age, lack of computer knowledge, other chronic health problems, and communication barriers. The burden then shifted to Defendants to show that suitable jobs were available, and Plaintiff was capable of getting one, considering his limitations. The Court reversed and remanded, ordering the Commission “to take additional evidence if necessary and make specific findings addressing plaintiff’s wage-earning capacity, considering plaintiff’s compensable [injury] in the context of all of the pre-existing and co-existing conditions bearing upon his wage-earning capacity.”

RISK HANDLING HINT:

Taken together, it appears that the Court of Appeals wants the Commission to specifically address all pre-existing and co-existing conditions in their analysis of disability. What is unclear is whether the Court of Appeals is effectively transferring the burden of disproving disability to the defendants. Presumably, every plaintiff will have some level of pre-existing or co-existing conditions. The question also remains what level of such conditions is enough to satisfy plaintiff’s burden of production of evidence of futility, thereby transferring the burden of disproving disability to the defendants. Please contact any member of our Workers’ Compensation team with questions or to discuss these issues in more detail.

Teague Campbell is proud to announce that on March 3, 2018, Asheville Partner Daniel Hayes was officially inducted into The College of Workers’ Compensation Lawyers.  He joins just 23 fellows from North Carolina, including Raleigh Partner Bruce Hamilton, inducted in 2011.

Fellows are nominated to the College by their peers for possessing the highest professional qualifications and ethical standards, character, integrity, professional expertise and leadership over a career of 20 years or longer.  Daniel took an oath committing to a lifelong dedication to professional conduct, scholarly pursuits, integrity, excellence in the law, and a respect for the legal process.

Twenty years ago, Daniel began his career in South Carolina as a workers’ compensation defense attorney.  He continues to practice workers’ compensation and has also developed a thriving Medicare practice.  Daniel is a certified Medicare Set-Aside Consultant and licensed to practice in North and South Carolina.

For more information about The College of Workers’ Compensation Lawyers, please visit: http://www.cwclawyers.org/

Written by: Brad Inman

Two long-time Deputy Commissioners have recently been nominated by Governor Roy Cooper for appointment to the Full Commission.   Deputy Commissioners Robert J. Harris and Myra L. Griffin have both served in their current roles since 2005, adjudicating cases and conducting full evidentiary hearings around the state.   Their appointments are pending confirmation by the North Carolina General Assembly, so Deputy Commissioners Harris and Griffin will continue to hear cases as Deputy Commissioners until the confirmation process is complete and each has been sworn in.  In addition to policy-setting, the six Full Commissioners sit in panels of three to represent the Commission’s appellate level, hearing claims appealed from Deputy Commissioner decisions. 

The other big news at the Commission is the expected final approval of new rules surrounding the use and prescription of opioids, related medications, and pain management treatment.   The rule-making process is nearing completion, with the stated goals of ensuring that injured workers are provided the services and care intended by the Workers’ Compensation Act and medical costs are adequately contained.  Much more about the specific provisions will be addressed in future blog posts when the rules become official, but the proposed rules will hold medical providers to strict standards and documentation requirements when it comes to prescribing controlled substances.  Certain drugs, such as fentanyl, will be prohibited from prescription during the first twelve weeks of treatment and mechanisms will be put into place to ensure that the lowest effective dosage of narcotic medication is utilized.  Again, the specific rules will be analyzed here when they become effective, which is expected by May 2018.

We are always available for consultation regarding the impact of the Commission appointments, how the current make-up of the Commission affects claim handling, and strategies for utilizing the anticipated opioid rules for maximum claim impact and cost containment. 

Written by: Kyla K. Block

Workers’ compensation employers’ subrogation lien rights have received attention in recent years in the appellate courts. The North Carolina Supreme Court recently issued an opinion in Easter-Rozzelle v. City of Charlotte which clarified the impact of a third party settlement made without the written consent of the employer on the workers’ compensation claim, claimant’s entitlement to benefits, and the employer’s resultant lien.

David Easter-Rozzelle sustained compensable injuries while working for the City of Charlotte (hereinafter “the City”). The City requested he obtain an updated work note and on the way to pick up the note, Mr. Easter-Rozzelle sustained injuries in a motor vehicle accident (“accident”).  After the accident, Mr. Easter-Rozzelle notified his supervisor and reported the accident to the City’s personnel office.

Mr. Easter-Rozzelle hired a personal injury attorney and settled the personal injury claim.  The settlement proceeds were disbursed without any reimbursement to the City.  Likewise, there was no Superior Court order eliminating the City’s lien and no Industrial Commission Order allowing distribution of the funds, as required under N.C.G.S. §97-10.2. Additionally, Mr. Easter-Rozzelle’s personal injury attorney alleged he was not “at work” when he sustained his injuries and the personal health insurance carrier should be responsible for those bills.

At the worker’s compensation mediation, Mr. Easter-Rozzelle’s workers’ compensation attorney first learned Mr. Easter-Rozzelle was injured while traveling to see his authorized treating physician. The attorney ultimately requested a hearing due to the City’s denial of the accident on the grounds that the City did not have notice of the accident and because Mr. Easter-Rozzelle reached a settlement with a third party and distributed funds without preserving the City’s lien.

The Deputy Commissioner found for the City, holding Mr. Easter-Rozzelle had no right to recover additional compensation from the City when the third-party settlement funds had already been disbursed.  The Full Commission reversed, concluding that the City had sufficient actual notice of the accident and subsequent injuries, and should have “at a minimum” investigated whether the accident was compensable under the Act.  The Full Commission also found the City was entitled to a statutory lien on recovery from the third-party proceeds of the personal injury claim, once the subrogation amount was determined by the parties’ agreement or by a Superior Court judge.

On appeal to the Court of Appeals, the City argued the Full Commission erred in concluding Mr. Easter-Rozzelle was entitled to recover additional compensation from the City for injuries sustained in the third-party accident when the settlement amount had already been disbursed in violation of N.C.G.S. § 97-10.2.  The Court agreed, holding where an employee is injured in the course of his employment by the negligent act of a third party, settles with the third party, and the proceeds of the settlement are disbursed in violation of N.C.G.S. § 97-10.2, the employee is barred from recovering compensation for the same injuries from his employer in a proceeding under the Workers’ Compensation Act.

The Supreme Court reversed, finding the Court of Appeals erroneously relied upon cases that had been superseded by statute and as such, misinterpreted the Act.  The Supreme Court held that an employee who: (1) had been injured at work; (2) was on his way to see his approved treating physician; (3) was injured again in an auto accident during the trip; (4) notified his employer of the new accident; and (5) settled with the third-party tortfeasor without notifying his employer was not barred from receiving workers’ compensation benefits.  The Court noted that an employer’s lien interest in third-party proceeds is mandatory, so there was no windfall to the employee because the employer is entitled to recover the amount of its lien by means of a credit against the employee’s ongoing workers’ compensation benefits.  The Court noted that N.C.G.S. § 97-10.2(j) contains no temporal requirement, and that either party may apply to the Superior Court judge to determine the amount of the employer’s lien.

The Court further highlighted that the City received actual notice of the accident, and as a result, had an opportunity to promptly investigate the claim and determine its compensability.  Had the City done so, it would have discovered Mr. Easter-Rozzelle had suffered compensable injuries, and it could have participated in the settlement process.

Risk Handling Hint: Employers need to communicate with their TPAs and carriers regarding notice of accidents, especially car accidents, which they think may be related to the workers’ compensation claim. Likewise, carriers and TPAs need to communicate with their contacts at employers and proactively ask whether there are any accidents after the date of injury, what the circumstances are, and whether there is additional liability or exposure.

Written by: Scott Farwell

After practicing law in the field of workers’ compensation for eleven years, I decided to return to school. Not business school; not for an LMS or other decorative degree which would typically boost the resume of a partner within a larger firm. Instead, I enrolled in Johnston Community College’s Truck Driver Training program, in Smithfield, North Carolina, and it was one of the best opportunities I have experienced in my career to date. Humbly, that is saying something given my eight year military experience as an interrogator both at home and abroad, time in the public high school system as a teacher, and as a traveling Russian linguist.

First, some relevant background on the Truck Driver Training Program at Johnston Community College itself.  It is the most seasoned truck driver program in the nation (and, by all accounts, the world), having been founded in 1939. Over 50,000 truck drivers have graduated from the school in its 79 years; with over 343 drivers graduating per year (on average). With night, daytime, and weekend course options, it stands significantly above so many other programs with both its stringent and respected testing requirements and behind-the-wheel drive times for its students. Recruiters were, very literally, asking for time to present the merits of their companies to the students throughout the 12 week course – detailing starting salaries for first year drivers which far exceeded dollar figures that any of the students, myself included, had seen in our initial years with other jobs.

Why am I waxing eloquent about the history and merits of this program? Two reasons (at least): First, the nation needs this profession to excel – a statement that intentionally carries multiple meanings. The nation needs truckers in order to excel as a nation; and the nation needs the truckers who drive within the profession to be better than simple bodies holding steering wheels. You can only imagine why this is true. While consumerism and community growth explode across the nation, the only means by which the latest and greatest materials and goods reach our doorsteps, is through this industry; and the only way that industry can accomplish the weighty task with which it has been burdened, is through its drivers. Perhaps more importantly (to you as you drive down the road alongside these monsters of the highway), the only way those drivers can actually reach their assigned destinations, is by being the safe, considerate and consummate professionals that each of us expect to be driving alongside us on the roads.

So I attended night and weekend classes, for 32 hours per week over the course of the 12 week program. I logged over 80 hours of drive time as a student, and ultimately obtained, not only my ‘class A’ driver’s license (CDL) but, an intense appreciation for the profession and art of driving multi-axle vehicles.

Recall, I indicated there were at least two reasons why I am splashing these pages with praise about my experience and the school I attended – first, because the profession must excel, and this school is absolutely providing the quality necessary to accomplish that. The second reason touches on why, as a workers’ compensation attorney, I would spend so much time, energy and effort to learn the hands-on level skills of driving a big-rig.  In a word, ‘closing claims.’

If you are reading this, your interest suggests your familiarity with the cross road within a workers’ compensation claim where the claimant is out of work, has attained MMI, but is an extremely difficult vocational rehabilitation candidate (difficult permanent restrictions involving no lifting, limited education, limited/focused past work experience, a resides in a smaller town 50 miles from any metropolitan area). In those situations, the carrier, the insured, and the attorney all publish to the claimant an expectation that a return to work is just around the corner, even while setting reserves within the file which reflect a long and expensive out of work experience. At mediation, I assure you those elements of exposure are not lost on opposing counsel, who consistently and confidently holds out for a ‘show me the money’ moment in claims where settlement is preferred to often-times fruitless vocational rehabilitation efforts.

Enter, my knowledge of just how badly this nation wants and needs truck drivers. Have no education or work experience in trucking? No problem! Inside of a four to eight week day course, they will have you behind the wheel of a big rig. No other education or experience required. Live in a rural area? No problem!  As a truck driver, your workplace travels home with you, and the 50 mile post MMI ‘area of residence’ limitation set out in N.C. Gen. Stat. §97-2(22) is met. Have a high pre-MMI average weekly wage, implicating exorbitantly high temporary partial exposure? No problem! With starting salaries north of $50,000.00, and second/third year salaries potentially exceeding $70,000.00, Defendants’ 500 week temp-partial headache is resolved. What about those pesky permanent restrictions, though? No problem. Virtually every inter or intra state trucking company is now offering no-touch/lift driver positions with vehicles using automatic transmissions. That means, by and large, even strict permanent restrictions can be met without modification. Ah yes, but what about a claimant with a criminal record? No problem! With notable exceptions having to do with drug trafficking and a select few other crimes (as per federal motor carrier safety regulations), in order to meet the growing deficit of needed drivers (greater than 50,000 as per 2017 publications on the topic), trucking companies are publicly taking the position that a driver’s past is in the past, and are hiring, nay recruiting, prior felons.

These elements impacting the more acute moments within a claim beyond the point of MMI, but prior to a claimant’s return to work do translate into literally hundreds of thousands of dollars of reduced claim exposure. I am living breathing proof of that fact. Since my attendance began in September of 2017, I have applied my knowledge and personal experience of and with the industry to resolve multiple long standing workers’ compensation claims. I have laughed across the table with claimants during opening statements at mediation (much to the chagrin of opposing counsel) about how everyone at the table knows their inactive CDL can be renewed, and their return to work into a no-touch/no-lift driver position is immediately assured; I have gained the respect and cooperation of pro se claimants who were non-communicative prior to my involvement, but who share ‘war-stories’ of their driving past once they realize I, too, carry my class-A license; I have rebutted the lay misstatements and misunderstandings of opposing counsel regarding the mechanics of a big-rig. In sum, I have closed claims.

While it may not always be the answer to closing a difficult claim, I am certain the need for truck drivers, in combination with the industry’s importance to the nation and our daily lives, causes it to be an excellent avenue to consider when faced with a difficult return to work scenario.