Decisions

Workers’ compensation cases are tried at different levels in North Carolina. Minor disputes can be handled administratively, while more complex ones require a hearing, where parties present evidence, witnesses testify, and the Commission later issues a written decision. If a party disagrees with that decision, the party can appeal to the Full Commission and perhaps again to the North Carolina Court of Appeals or the Supreme Court of North Carolina.

By the time cases reach an appellate court, they usually involve significant legal issues that affect the outcome of many other cases as well as the public interest. The appellate courts publish the most significant decisions, while other cases are left unpublished. The website of the North Carolina appellate courts gives you access to recent decisions, if you are interested in reading them.

We have been involved in numerous cases before the Industrial Commission. You can go to their website and use the search term “SUMWALT” to review our cases.

*This list does not include cases that were settled or dismissed after the Notice of Appeal.

We have been counsel of record in the following decisions rendered by the North Carolina Court of Appeals:

Nale v. Ethan Allen, ___ N.C. App. ___, ___ S.E.2d ___ (2009) (filed Sept. 1, 2009).

Nale dealt with the standard of review and causation.
Gesel v. Miller Orthopaedic Clinic, COA 08-1077 (filed July 7, 2009).

Gesel was an unpublished decision concerning an employee who, after returning to work at several jobs that she found on her own, each of which paid less and less in earnings, was found to be disabled. The Court upheld the Commission’s determination that further job search would be futile that that Ms. Gesel was not obligated to return to a part-time job paying only 17.1% of her pre-injury earnings.
Meares v. Dana Corp., ___ N.C. App. ___, 666 S.E.2d 819 (2008) (filed Oct. 7, 2008).

Meares affirmed a penalty against an employer who tried to eliminate future benefits for an employee’s dependents on a premature basis.
Starr v. Gaston County Board of Educ., ___ N.C. App. ___, 663 S.E.2d 322 (2008) (filed July 15, 2008).

Starr dealt with the indemnification provisions of N.C. Gen. Stat. § 97-86.1, which applies when two or more insurance carriers may be liable for a compensable injury. In addition, Starr also clarified that equitable defenses are not available in workers’ compensation cases when there is an adequate remedy at law, even if that remedy is unfavorable.
Roberts v. Dixie News, Inc., 189 N.C. App. 495, 658 S.E.2d 684 (2008).

Roberts dealt with the medical consequences of an original, compensable injury, holding that a flare-up of symptoms after a return to unsuitable employment was not an “independent, intervening event” that breaks the chain of proximate causation.

On another issue of first impression, Roberts held that a deputy commissioner’s Opinion and Award is enforceable during an appeal to the Full Commission. Although the result in Roberts allowed an insurance carrier to stop payment of weekly benefits during appeal from an Opinion and Award that did not favor the injured employee, the holding extends to the converse situation, too—benefits payable under a deputy commissioner Opinion and Award, which is favorable to the injured employee, are due and payable notwithstanding an employer’s or its insurance carrier’s appeal to the Full Commission.
Davis v. Harrah’s Cherokee Casino, 362 N.C. 133, 655 S.E.2d 392 (2008) (amicus curiae involvement for the North Carolina Academy of Trial Lawyers).

Using the “any competent evidence” standard of appellate review, Davis upheld the Commission’s factual determination of a compensable injury as well as Defendants’ failure to show a break in proximate causation from an “independent, intervening event attributable to the employee’s own intentional conduct.”
McCarver v. Hunter Motors, Inc., COA 07-346 (N.C. Ct. App. filed Jan. 15, 2008).

McCarver upheld the Commission’s determination that a job exceeding the employee’s restrictions was not “suitable” to his capacity.
Polston v. Six Star Economic Devel./ Golden Corral, COA 06-1500 (N.C. Ct. App. filed Sept. 4, 2007).

Polston reaffirmed the Commission’s exclusive duty to find facts and weigh evidence on the issue of medical causation.
Shaw v. U.S. Airways, Inc.,362 N.C. 457, 665 S.E.2d 449 (2008), rev’g, 186 N.C. App. 474, 652 S.E.2d 22 (2007).

As a case of first impression in North Carolina, Shaw looked at the issue of whether vested 401k contributions by an employer are a part of the employee’s “earnings” for purposes of calculating “average weekly wage.”
D’Aquisto v. Mission St. Joseph’s Health Sys., 360 N.C. 567, 633 S.E.2d 89 (2006), affirming in part, reversing in part, 171 N.C. App. 216, 614 S.E.2d 583 (2005), appeal after remand, ___ N.C. App. ___, ___ S.E.2d ___ (2009) (filed Aug. 4, 2009). .

The 2005 and 2006 decisions in D’Aquisto considered the “arising out of” element in the definition of an “injury,” and specifically did so in the context of a workplace assault in a healthcare setting. The 2009 decision concerned attorneys’ fees awarded under N.C. Gen. Stat. § 97-88.1 because of the employer’s multiple and unsuccessful appeals, which necessitated additional time and expenses to defend and ultimately delayed the benefits awarded by several years.
Dodrill v. Jerry Rhyne’s Collision Repair, COA No. 05-1408 (N.C. Ct. App. filed July 5, 2006).

Dodrill was an occupational disease case involving bilateral bursitis and rotator cuff tears, and it evaluated the “last injurious exposure” rule in fixing liability when there was a dispute between different insurance companies as to which one bore the risk of that work-related exposure that caused the occupational diseases.
Silvers v. Mastercraft, Inc., COA No. 05-895 (N.C. Ct. App. filed June 5, 2006).

Silvers looked at the concept of “suitable” employment and the employee’s right to ongoing disability compensation when there is no alternative, suitable employment available. Silvers also looked at the issue of improper communications between an employer’s representative and a treating physician that were both ex parte and in violation of the physician-patient privilege of N.C. Gen. Stat. § 8-53
Montgomery v. Toastmaster, Inc., 174 N.C. App. 320, 620 S.E.2d 685 (2005).

Montgomery also looked at the concept of “suitable” employment, but it also considered the issue of whether an employee was still disabled even though she retired for injury-related reasons.
Meares v. Dana Corp./ Wixx Division, 172 N.C. App. 291, 615 S.E.2d 912 (2005).

Meares held that an insurance carrier could not set off its liability for workers’ compensation by the amounts paid to the injured employee under a severance package.
Brooks v. Capstar Corp., 360 N.C. 60, 621 S.E.2d 170 (2005) (amicus curiae involvement for the North Carolina Academy of Trial Lawyers), dismissing petition for discretionary review as improvidently allowed, 168 N.C. App. 23, 606 S.E.2d 696 (2005).

Brooks considered whether an employee’s poor vocational profile rose to the level of an intentional “refusal” of vocational rehabilitation services in an effort to suspend disability compensation.
Konrady v. U.S. Airways, Inc., 165 N.C. App. 620, 599 S.E.2d 593 (2004).

Konrady dealt with the elements of an “accident” and whether the accident caused the employee’s disability. In doing so, Konrady held that North Carolina does not apportion disability between compensable and non-compensable causes when the basis of such apportionment is speculative.
Boney v. Winn Dixie, Inc., 163 N.C. App. 330, 593 S.E.2d 93 (2004).

Boney concerned the issue of how to calculate the “average weekly wage” of a retired employee injured in a part-time, supplemental job.
Atkins v. Kelly Springfield Tire Co., 358 N.C. 540, 597 S.E.2d 128 (2004) (per curium) (amicus curiae involvement for the North Carolina Academy of Trial Lawyers), dismissing petition for discretionary review as improvidently allowed, 154 N.C. App. 512, 571 S.E.2d 865 (2002).

Atkins addressed the issue of what constitutes a “full and complete medical report,” which should accompany agreements before the Commission can approve them. Atkins also gave rise to the Industrial Commission Form 25A.
Willey v. Williamson Produce, 357 N.C. 41, 577 S.E.2d 622 (2003) (per curium) (amicus curiae involvement for the North Carolina Academy of Trial Lawyers), reversing 149 N.C. App. 74, 562 S.E.2d 1 (2002).

Willey addressed the intoxication defense to workers’ compensation claims under N.C. Gen. Stat. § 97-12 and refused to apply a “presumption of impairment” in North Carolina, which is the law in several other states. In 2006, the North Carolina legislature modified section 97-12 to provide for a rebuttable presumption of impairment after Willey clarified that no such impairment previously existed under North Carolina law.
Osmond v. Carolina Concrete Specialties, 151 N.C. App. 541, 568 S.E.2d 204 (2002).

Osmond involved the “special errand” exception to the “coming and going” rule for determining compensability.
Bridwell v. Golden Corral Steak House, 149 N.C. App. 338, 561 S.E.2d 298 (2002).

Bridwell dealt with the issue of “disability” under N.C. Gen. Stat. § 97-2(9).
Ruiz v. Belk Masonry, 148 N.C. App. 675, 559 S.E.2d 249 (2002).

Ruiz announced that undocumented aliens are “employees” for purposes of receiving workers’ compensation benefits when they are injured at work. More specifically, Ruiz determined that the Federal Immigration Reform Control Act of 1986 did not preempt state-law definitions of the word “employee” for workers’ compensation purposes, which would have precluded undocumented aliens from receiving compensation despite their injuries. The case also dealt with the issue of attendant care services.
Groves v. Travelers Insurance Co., 354 N.C. 206, 552 S.E.2d 141 (2001) (per curium) (amicus curiae involvement for the North Carolina Academy of Trial Lawyers), reversing 139 N.C. App. 795, 535 S.E.2d 105 (2000).

Groves looked at the exclusivity remedy of workers’ compensation, which N.C. Gen. Stat. § 97-10.1 establishes.
Shah v. Howard Johnson, 140 N.C. App. 58, 535 S.E.2d 577 (2000).

Shah included the value of lodging into the employee’s “average weekly wage” and looked at the concept of “suitable” employment.
London v. Snak-Time Catering, 136 N.C. App. 473, 525 S.E.2d 203 (2000).

London held that insurance carriers had to reimburse an injured employee’s family members for attendant care services, or medically necessary and unskilled nursing services, provided when an insurance carrier did not provide those services.
In re Harrington v. Adams-Robinson Enterp., 349 N.C. 218, 504 S.E.2d 786 (1998) (amicus curiae involvement for the North Carolina Academy of Trial Lawyers), affirming 128 N.C. App. 496, 495 S.E.2d 377 (1998).

Harrington addresses the concept of maximum medical improvement in the context of ongoing disability.
Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 69 N.C. App. 164, 316 S.E.2d 318 (1984), appeal after remand, 82 N.C. App. 21, 345 S.E.2d 453 (1986).

Southern Watch Supply involved the issue of proximate cause and the “reasonable person” standard in negligence claims. The case was appealed again after an initial remand, at which time it addressed the present sense impression and excited utterance exceptions to the hearsay rule.
Nassif v. Southern Wholesale, Inc., 73 N.C. App. 608, 327 S.E.2d 64 (1985).

Nassif considered the inclusion and exclusion of evidence based on its credibility.