Recently in Workers' Compensation Category

A Kickball Injury and Other Surprising Workers' Comp Cases

November 4, 2014, by

Thumbnail image for Kickball Image.jpgSay you work for a company in South Carolina and your boss asks you to organize an employee kickball game to make the work atmosphere more enjoyable. And say you jump during the game, land awkwardly and fracture your leg.

Are you eligible for South Carolina workers' compensation?

Yes, indeed, according to the South Carolina Supreme Court, which recently approved workers' compensation in just such a scenario. The case involved an employee of a public relations firm who shattered his tibia and fibula during a company kickball game and underwent two surgeries.

The workers' compensation system typically provides coverage for injuries that occur within the course and scope of a worker's employment. But some circumstances are so unusual that hot disputes arise about whether an injury truly was related to work.

In the kickball case, the South Carolina Workers' Compensation Commission ruled that the employee was not entitled to benefits, concluding that he was not required to attend the kickball event. On appeal, however, the South Carolina Supreme Court disagreed, siding with the injured worker.

"Although the event may have been voluntary for company employees generally, the undisputed facts unequivocally indicate [the injured employee] was expected to attend as part of his professional duties," the court wrote.

According to the ruling, attending an event is not voluntary "If the employee is made to understand that he is to take part in the affair."

The court also stated: "A specific act need not be designated in an employee's job description to be compensable."

Unusual Work Injuries

Workers' compensation provides coverage for medical fees, lost wages, rehabilitation and other costs for injuries occurring on the job. The system also provides death benefits for the family of an employee who dies of work-related injuries. But as the kickball case shows, work-based injuries don't necessarily take place at the main jobsite or workplace, and employers can dispute a workers' comp claim on the grounds that an injury or death was not sustained in the course and scope of employment.

In recent years, courts across the country have addressed many out-of-the-ordinary workers' comp incidents. In some cases the courts favored the employee, while in others they favored the employer -- and the differences are elucidating.

Continue reading "A Kickball Injury and Other Surprising Workers' Comp Cases" »

Can I Be Fired for Filing a Workers' Compensation Claim in South Carolina?

September 9, 2014, by

workerinjury1.jpgIf you have been injured on the job, you may be wondering about your rights under South Carolina's workers' compensation laws. You may be scared to file a workers' compensation claim because you fear that your employer will fire you, demote you or cut your pay for doing so. This is called retaliation and is a very serious issue.

Under South Carolina law, employers are not allowed to fire or demote any employee because the employee has filed a workers' compensation claim or has testified or is going to testify in a workers' compensation hearing. It is illegal for employers to do so.
I believe this law is good public policy. It helps ensure that hurt workers are not afraid to report injuries so that they can receive the medical help and treatment they need.
Our law firm handles workers' compensation claims, and we are ready to discuss your case and protect your rights. Please call us today if you have a workers' compensation case or if you feel that you have been retaliated against for filing a workers' compensation claim.

What can I do if my employer fires or retaliates against me?
In South Carolina, any employer who violates the law by retaliating against an employee for filing a worker's compensation claim or for testifying in a hearing is "liable in a civil action for lost wages suffered by an employee." If the employee is demoted to a lower position, then he or she is "entitled to be reinstated to his former position."
In other words, you can bring a lawsuit against your employer for lost wages, and you have the right to get your old job back if you are demoted. It may be awkward for you to return to your position after you filed a lawsuit against your employer, but this is the remedy under the law.

Keep in mind that the burden is on you, as the employee, to prove the retaliation. Therefore, it is important for you to keep documents and other evidence that your employer wrongfully punished you for exercising your legal right to workers' compensation.

Continue reading "Can I Be Fired for Filing a Workers' Compensation Claim in South Carolina?" »

Who Should I Notify If I Get Hurt On The Job in South Carolina?

August 8, 2014, by

workerinjury.jpgIf you have been injured on the job, it is critically important that you notify your employer and take certain steps so that you can pursue your Workers' Compensation benefits in South Carolina.

As a Workers' Compensation Attorney, here are the two most common questions I get regarding notice:

Who do I need to notify of my work injury?

Giving notice to your employer of your job accident is the first step in obtaining the medical or compensation benefits you deserve. South Carolina requires that an injured worker must notify his or her employer of the accident. The employer representative that you give notice to should be one of your supervisors or managers rather than a co-worker.

Failure to notify your employer of your work injury could keep you from the medical care and compensation that you deserve. It important that every accident on the job, regardless of how insignificant it may seem at that time, is reported to your employer immediately. Sometimes, injuries that seem insignificant at first develop into serious injuries over time.

Ideally, notice of the accident should be given in writing and should specifically state how you were injured and should request that your employer send you for medical care and treatment. It is very important that you ensure that an accident report is filled out, that it correctly states how you were injured, and that you get a copy of the accident report. Too often, claimants are denied the benefits they deserve because their employer never documented the accident; don't let this happen to you.

How long do I have to give notice of my work injury?

Other than some exceptions, the rule is that you have 90 days from the date of your accident to report your on-the-job injury. Practically though, it is best to notify your employer as soon as possible after your work injury. The sooner you report the injury to your employer, get an accurate accident report filled out, and request medical care the better.

Continue reading "Who Should I Notify If I Get Hurt On The Job in South Carolina?" »

Fewer North Carolina Workplace Fatalities in 2012

October 31, 2013, by

Thumbnail image for bulldozer.jpgThe latest report from the U.S. Bureau of Labor Statistics indicates that the number of workplace fatalities in North Carolina was down by 10 in 2012, with 138 that year compared to 148 in the prior year.

Reductions were also reported in South Carolina, where there were 31 workplace fatalities reported in 2012, compared to 81 in 2011.

In both cases, our Western North Carolina and Upstate South Carolina workers' compensation lawyers understand, transportation injuries were the leading cause of death at work, which was a factor in line with the rest of the country as well.

Continue reading "Fewer North Carolina Workplace Fatalities in 2012" »

Scaffolding Collapse In Marion Injures 8 And Triggers Investigation

August 13, 2013, by

obreros-1157819-m.jpgOur thoughts and good wishes are with the 8 workers who were injured because of the collapse of scaffolding at a construction site at McDowell High School in Marion this week. That incident has triggered an investigation by the Occupational Safety and Health Division of the North Carolina Department of Labor. According to the Asheville Citizen Times, it could take weeks or months before the investigation determines whether workplace violations contributed to or caused this incident.

Fines for workplace safety violations are supposed to act as a deterrent to make sure companies will provide a safe work environment for employees. However, a 2008 investigative report by The Charlotte Observer found declining inspections and weak enforcement of regulations in North Carolina. In addition, it found that fines for violations in North Carolina can sometimes be minimal. The report showed that fines for serious violations in North Carolina were often half the national average.

A report this year by the National Council on Occupational Safety and Health titled North Carolina Workers Dying For A Job, found that in cases where workers died on the job and the employer was cited for at least one violation, the median fine was $3,250.

Beam Construction, head of the project at McDowell High School where these 8 workers were injured, was fined $1,300 in 2009 for a violation deemed serious by the Department of Labor. The Asheville Citizen Times reports that the violation, one of five against Beam Construction that year, was for "duty to have fall protection." Three of the five citations were dropped in an informal settlement.

The report from the National Council on Occupational Safety and Health also estimates that far more workers die on the job in North Carolina each year than are reported by the N.C. Department of Labor. The report estimates that at least 83 workers died on the job in 2011 while the NC Department of Labor put the number at 53. Part of the reason for the difference according to the report is that The NC Department of Labor does not count vehicle accident and workplace violence related deaths nor does it count the deaths of the self-employed.

Meantime, what about the workers hurt in this scaffolding collapse? Depending on their injuries they may not be able to work for days, weeks, months or ever again. The type of injury they have determines which of the three type of Workers Compensation Benefits they may be eligible for. These may include weekly checks for missed work, coverage for medical expenses and payment for permanent injury.

North Carolina Lawmakers made extensive changes recently in workers compensation laws including limiting how long a person may receive workers compensation benefits. The limit for temporary total or temporary partial disability compensation is 500 weeks. However, an injured worker may qualify for extended or other compensation under certain circumstances.

Continue reading "Scaffolding Collapse In Marion Injures 8 And Triggers Investigation" »

Agricultural Injuries in North Carolina Spike in Summer, Fall

July 31, 2013, by

The agricultural industry is one of the most profitable in North Carolina, accounting for nearly one-third of the state's gross income and employing about a quarter of its work force. Top commodities include tobacco, turkey, sweet potatoes, pigs, Christmas trees and trout.
However, agricultural occupations are undoubtedly among the most dangerous.

As we head into the height of the summer and on into the fall harvest season, our Waynesville workers' compensation attorneys feel it's imperative for employers to take stock of any potential hazards that may arise as the season gets into full swing.

In March, NPR detailed a series of entrapment deaths caused at grain bins across the country. Men and sometimes even teenagers were killed after becoming trapped inside grains bins and buried alive.

These incidents began drawing attention to the dangers faced down by agricultural workers who are responsible for producing the foods we enjoy on our tables daily.

Also taking note of these alarming incidents was the Occupational Safety & Health Administration, which recently teamed up with The Ohio State University to formally study the problem.

According to the team's latest report, a total of 26 U.S. workers were killed in grain engulfments in 2010. That was the highest year on record. In the last 50 years, there have been more than 900 incidents of grain engulfment, with a fatality rate reaching near 65 percent.

The Midwest region OSHA director said his office is working to combat the six biggest hazards in the grain and feed industry, which are:

  • Engulfment;

  • Falls;

  • Auger entanglement;

  • "Struck by" incidents;

  • Combustible dust explosions;

  • Electrocution hazards.

Some of these incidents occur at farms that employ fewer than 10 people, which employees may not realize means the company is not under OSHA's jurisdiction or safety oversight.

The agricultural industry is one of the largest employers of youth under the age of 20, with an estimated 750,000 in this age groups working at farms as of 2009, according to the U.S. Centers for Disease Control on Prevention.

In 2010, a total of more than 475 farmers and farm workers died as a result of work-related injuries, creating a death rate of 26.1 for every 100,000 workers. On average, about 115 of these are youth under the age of 20.

The top cause of farm fatalities? Tractor overturns, followed by motor vehicle crashes and drownings.

In addition to those fatalities, about 3,400 youth under the age of 20 suffered injuries while doing farm work. About five percent of those incidents resulted in permanent impairment.

These are young men and women whose lives have been either tragically cut short or their future livelihood has been severely impacted, often due to the negligence of employers who refused to ensure all proper safety procedures were in place. When that happens, these agricultural firms must be held accountable.

Continue reading "Agricultural Injuries in North Carolina Spike in Summer, Fall" »

North Carolina Worker Protections Erode

July 24, 2013, by

Protections for workers in North Carolina were substantially weakened recently, as the Associated Press reports the state slashed benefits for newly-filed unemployment claims and also became the first in the country to become disqualified for federal aid for the long-term jobless.
This, combined with the fact that many businesses were discovered last year to be putting employees at risk by failing to purchase workers' compensation insurance - something the state failed to appropriately monitor - just further drives home the critical importance of selecting an experienced Asheville workers' compensation attorney following a job-related injury. Attorney Henry E. Teich of Grimes Teich Anderson is a North Carolina Board Certified Workers Compensation Specialist.

In addition to shelling out thousands of dollars in medical costs following a work injury, many workers find they are unable to immediately return to work. Sometimes, that time away is extended. If that time frame is expected to be a year or longer, it may be appropriate to file for federal Social Security Disability Insurance benefits.

While collection of SSDI and workers' compensation benefits is generally not appropriate (or in many cases even possible), an injured worker should seek qualified legal advice. Fewer North Carolina workers can expect to receive unemployment benefits - and those who do will get less - as state officials adopted both increased business taxes and a reduced benefits package. Their aim is to speed up repayment of a $2.5 billion debt owed to the federal government, for assistance given to the state's unemployment program in the midst of the Great Recession.

North Carolina has the fifth-highest unemployment rate in the country.

The state was forced to give up worker access to those federal dollars in exchange for reducing the weekly benefits amount - something that the federal program strictly prohibited as a condition of receiving the money.

In practical terms, what this means is that the 170,000 workers whose state unemployment benefits are expected to expire yet this year will lose out on access to about $700 million in federal Emergency Unemployment Compensation funds.

Additionally, qualifying for benefits will become even more difficult and weekly payments will go from a maximum of $535 weekly down to $350. That's the largest reduction ever recorded in the Southeast.

Some 20 other states are in a similar debt situation with regard to federal aid, but no others have taken the drastic step of reducing benefits so severely as a result. North Carolina's unemployment benefits debt to the feds is the third-largest in the nation - which is indicative of the fact that we were one of those states that could least afford such a dramatic reduction.

Lawmakers said that delaying the move could have meant the debt would increase. However, the people who ultimately pay are the ones who can't find work, in many cases due to a prior work-related injury.

Republican lawmakers suggested that many of those collecting unemployment benefits are holding out for better opportunities than the ones being presented, and urged them to "take a job, get back into the job market."

However, for those who have suffered a significant injury, such directives are not always so simple. A recent study by Cornell University showed that only 34 percent of all persons with disabilities were employed full-time in 2011. In North Carolina, that rate was lower at 30.7 percent.

When the disability was incurred after sustaining a work-related injury, you deserve compensation. We are committed, especially under the significant reduction of other financial safety nets, to helping you obtain it.

Continue reading "North Carolina Worker Protections Erode " »

North Carolina Worker Deaths Higher Than State Reports

June 11, 2013, by

The number of North Carolina workers who are killed on the job is nearly three times higher than what the state reports, according to a recent study by the National Council on Occupational Safety and Health.
The disparity is believed to stem from the fact that the state has numerous incentives to keep that figure as low as possible, according to the non-profit safety council's executive director.

As our Asheville workers' compensation lawyers understand it, the North Carolina Department of Labor reported that in 2011, there were 53 workplace fatalities. That was reported as a slight uptick of three deaths from what had been reported the previous year. (Eighty percent of those were attributed to workers being struck by a vehicle, falling, being crushed by objects and heat-related illnesses.)

However, the U.S. Bureau of Labor Statistics reports the actual number of workplace deaths that year was 148.

In 2012, the labor department estimates there were 35 work-related deaths. The safety council said it was able to identify by name at least 68 North Carolina workers who had died on the job that year, and says actual estimates from the BLS are around 129. That doesn't include workplace illnesses resulting in death, which tend to be under-reported in official data.

In fact, the safety council says that between 2007 and 2011, the state's labor department only reported about 32 percent of the actual workplace deaths that occurred in North Carolina. During that five-year time frame, the safety council says, there were in fact 744 people who died on the job.

Of those, the majority were felled by transportation incidents. However, the next most-common cause of death was assault or other violent act. This was followed by contact with objects, then falls and then exposure to harmful substances and environments. About 20 were from explosions or fires.

The labor department reports only those workplace deaths over which it has the authority to investigate. One of the big gaping holes in the state's figures is the number of workplace deaths attributed to violence. Another is transportation fatalities, which the state labor department concedes it can't by law investigate and wouldn't have to the staff to do so even if it could. The agency also doesn't tally deaths of those who are self-employed.

Despite the wide disparity, the safety council reports that the state's fatality rate has dipped markedly over the last 10 years, making it now equal to the national average of about 3.7 per 100,000. The national average is 3.75 per 100,000.

But the fact of the matter remains that there is much more we could be doing. Deciding how best to do that requires that we have an accurate picture of how many workers are being killed or injured and why.

Moving forward, the safety council says special focus needs to be paid to immigrant workers, who are overrepresented in the number of work-related fatality figures. Between 2011 and 2012, nearly 30 percent of those killed on the job were Hispanic - which is 3.5 times their relative population in the state. This is striking especially when you consider that by that time, thousands of Hispanic immigrants had already left the state once the construction industry began to fizzle as a result of the dragging economy.

Continue reading "North Carolina Worker Deaths Higher Than State Reports" »

Workers' Compensation and Mental Health Benefits in South Carolina

April 3, 2013, by

Our Greenville workers' compensation attorneys applaud the effort underway to extend mental health benefits to police and fireman injured on the job in South Carolina. 1235172_bee.jpg

As The State newspaper reports, the House Judiciary Committee has approved proposed legislation that would exempt public safety workers from the state's "extraordinary and unusual" standard for determining whether an employee is entitled to workers' compensation benefits for mental health issues stemming from an on-the-job incident.

A ruling last year by the South Carolina Supreme Court held that shooting someone is not "extraordinary or unusual" for a police officer. Slate recounts the story of a Spartanburg County sheriff's deputy who shot and killed a man in 2009. The deputy has since been unable to work and has attempted suicide several times. He has been diagnosed with post-traumatic stress disorder and collects police disability pay. But his workers' compensation claim has been denied.

The proposed legislation would only relax the requirements for public-safety workers -- EMTs, paramedics, police officers, firefighters and jail and prison guards. However, it is being opposed by local governments, which argue relaxing the requirements to draw workers' compensation benefits for mental health claims would increase the claim obligations of governments already dealing with budget cuts.

The truth of the matter is that mental health parity is an issue with which the nation's health care system continues to struggle. Congress passed the Mental Health Parity Act in 1996, which requires group health plans to offer lifetime limits for mental health benefits that are no lower than medical and surgical benefits. Still, far too many employees who suffer from addiction, depression or other mental health issues, fail to get the benefits necessary for counseling and other treatment aimed at recovery.

As it stands now, public safety workers with mental disabilities may draw disability retirement and Social Security disability. Local governments note California has moved to make it tougher to draw workers' compensation for mental health reasons in an effort to reduce a flood of claims in the court system.

South Carolina law recognizes three types of work injury: Physical, mental, and both physical and mental. Mental injuries without physical injuries are the hardest to prove, and therefore sufferers are most likely to be denied benefits. While most states permit compensation for mental injuries, South Carolina law requires medical evidence of a mental injury resulting from "extraordinary and unusual" job conditions.

Justice Kaye Hearn expressed his concern in a dissenting opinion, stating he found it difficult to imagine a scenario where Deputy Sheriff Bentley could recover workers' compensation if only he had managed to trip and physically injure himself before shooting and killing the suspect, when the real reason he would need the workers' compensation was due to the mental distress resulting from drawing his gun on the suspect in the first place.

Continue reading "Workers' Compensation and Mental Health Benefits in South Carolina" »

Fatal North Carolina Work Accident Prompts Safety Review

February 15, 2013, by

A recent accident at a South Carolina plant proved fatal for a 39-year-old North Carolina husband and father, who was working his very first shift on the job. Another man was injured. chemicalinjury.jpg

Our North Carolina and South Carolina workers' compensation lawyers know those facts alone would be red flags, suggesting a company may not have provided enough training for a new hire, especially if conditions were potentially dangerous.

The incident happened late last month at a paper plant in Catawba, South Carolina. Officials with the U.S. Occupational Safety & Health Administration (OSHA) are investigating, though any formal conclusions are unlikely to be reached for at least six weeks. At this point, it is a suspected chemical incident. County emergency management officials say that three workers - including the victim, a man from Monroe, North Carolina, and his cousin, who was also working his first shift on the job as a contract employee - were cleaning a huge tank inside the plant's generation area. There was a scheduled maintenance power outage around 1:30 a.m., at which point it is believed some type of chemical leaked into the tank, which is designed to suck up fumes from the mill's generation area so they don't pour into the general work area and put employees at risk.

While the men were cleaning, the alarm went off. The cousin and other worker were able to scramble out, but the victim was stuck suspended by a harness. His cousin later told reporters he ran to get help, and at first wasn't taken seriously by supervisors.

By the time emergency crews were cleared to safely enter the tank, his wife was already on the scene, watching helplessly from outside. The worker, still strapped in his harness, had already died.

The plant later contended that the men were all equipped with the proper protective gear and were well-trained. The cousin disputes that account. He says that he and his cousin were given a short video to watch 12 hours prior to the shift. They were shown a respirator during training that reportedly failed, but the supervisor reportedly told them it was "fine." He added that the same supervisor gave them the answers to a safety test they were to take prior to starting.

If OSHA's investigation lends credence to these allegations, it would no doubt be an egregious violation of safety procedures. These are not simple formalities. As this situation shows, such procedures and equipment are required so that tragedies like this do not occur.

This is not the first time this particular company's employees have been placed at risk. Last spring, a mixture of sodium hydroxide and other chemicals was sprayed on four workers in the plant's pulping area after a suction valve burst. The workers had been wearing heavy duty protective gear, and still suffered second- and third-degree burns all over their bodies, including their eyes.

Also last year, a contractor was sprayed in the face with a toxic chemical while transferring it from a truck to a holding container. He was rushed to a nearby hospital.

Altogether last year, OSHA issued four serious violations against the company for failure to test its breathing equipment, install carbon monoxide alarms, train two workers or review its own Exposure Control Plan.

This plant was also the site where two workers were killed and several others injured in 2000 when several pipes exploded.

Continue reading "Fatal North Carolina Work Accident Prompts Safety Review" »

Carolina Workers' Compensation: No Excuse for State Permitting "Ghost Policies"

August 24, 2012, by

The state is doing a poor job of tracking whether your employer has workers' compensation insurance, designed to compensate you if you are injured on the job. While North Carolina work-safety inspectors fan out across the state each day in search of violations, they are not asking for proof that an employer has workers' compensation insurance as required by law.

A review by the News & Observer found 300 businesses inspected last year, where coverage appeared to be expired at the time of inspection. All that's required is a simple crosscheck of information held by the state Department of Labor. This North Carolina agency is in charge of workplace safety, and the state Industrial Commission, which oversees workers' compensation claims. 1125238_forklift_1.jpg

It's just that no one in state government is checking.

Our Asheville workers' compensation lawyers know it's far from the only criticism of the state-run system. NBC News reports that 26 states (including North and South Carolina) administer their own system under federal oversight. Such programs have been blamed in the past for cozying up to employers, conducting lax inspections and not keeping victim's properly informed.

A study by the Occupations Safety and Health Administration found that state-run systems in North and South Carolina were not collecting levied penalties. South Carolina was also accused of misclassifying violations. Federal inspectors have blamed OSHA for a lack of oversight of state systems. OSHA has promised to revamp the system.

The state systems in North and South Carolina also do a poor job of publishing violations. While federal violators are easily found in press releases on OSHA's website by state, a visit to the North Carolina Industrial Commission's website reveals the last press release was issued in June and details a fraud claim.

Dealing with the state-run bureaucracy in the wake of a serious accident at work should always be done with the help and guidance of an experienced attorney. However, an employer's lack of workers' compensation insurance is a particularly egregious gamble that forces injured workers to pay the price. The Charlotte Observer reports a typical scheme to get around the requirement to carry workers' compensation insurance is classifying employees as independent contractors. An owner can then exclude himself, as allowed by law, and purchase a cheap "ghost policy" for an as-yet unhired employee.

For a small construction company with 5 employees, the resulting premium might be $850 a year, compared to $30,000 to purchase the proper coverage. However, in the event of an injury, an uncovered employee is left victimized and without proper coverage. While it's unclear how many of the 140,000 polices sold to North Carolina businesses each year are these "ghost policies," the North Carolina Rate Bureau is aware of at least 16,000.

Employers must purchase workers' compensation policies to protect employees who are injured on the job. Those injured on the job are entitled to lost wages, short-term disability and medical expenses. Access to workers' compensation is vital to making a proper recovery after being injured in the workplace. There is no more basic obligation of state watchdogs than to ensure that such coverage is in place.

Continue reading "Carolina Workers' Compensation: No Excuse for State Permitting "Ghost Policies" " »

The Court in Gaines Gentry v. Mandujano Clarifies What is Considered to be Work Related in North Carolina Workers' Compensation

June 13, 2012, by

As an interdependent society, we rely on each other in order to go about our daily lives. Everyone has a job or function in order for our society to run smoothly. With this interdependence, it has become customary for traveling to be an integral party of many different jobs. But if you work in North Carolina and are involved in an accident while traveling for business, are you entitled to workers' compensation?
The intricacies of North Carolina workers' compensation can be complex; which is why it is so important to have an experienced North Carolina injury attorney guiding you to the award you deserve.

Gaines Gentry v. Mandujano is a recent case that explores the intricacies of the scope of employment principal in worker's compensation. This case involved a horse farm groom named Mandujano (claimant) who worked for Gaines Gentry Thoroughbreds (Gaines) in Kentucky. Gaines was associated with another company called Easton Sales (Eaton), which sold horses on consignment. As part of his job duties, claimant was responsible for showing horses for Eaton.

There was a yearling sale taking place in New York, and Eaton had six yearlings to be sold. After working with Gaines for two years, claimant was sent with the six yearlings to New York for the sale. The agreement was for the claimant to travel in the van with the yearlings on the way to New York, and after the six horses were sold, he was to return to Kentucky. Gaines did not provide return transportation for the claimant, as he was left to his own devices. Once the claimant had sold his employers' six horses, the claimant stayed in New York to work with another horse seller in the selling of lesser quality horses.

Claimant was driving back to Kentucky from the sale in New York when he was involved in a serious car accident that caused his to suffer severe injuries. Claimant had extensive dental injuries, cervical and lumbar spine injuries, and skull fractures. Once the claimant recovered, he returned to work with Gaines and entered a claim for workers' compensation benefits.

Claimant entered this claim for benefits because he was driving back to Kentucky as part of his job activities. On the other hand, Gains argued that because the claimant had stayed in New York longer than he was supposed to, the injuries he sustained because of the car accident were non work related.

The Administrative Law Judge (ALJ) responsible for making a determination of benefits for workers' compensation purposes found that the claimant was entitled to workers' compensation benefits because he was traveling as part of his employment. The facts that supported this contention included the fact that Gaines who was acting as the claimant's employer instructed the claimant to travel to the sale with the horses. Had the claimant not agreed to travel, Gaines would have sent another employee. Additionally, the ALJ pointed out that Gaines paid the claimant to travel to New York, and because Gaines did not provide for his return trip, claimant was free to return in the best way he could.

Thus, where an employee is traveling back to his job location to undertake his usual duties, and where he is returning from a location where he was sent to work, any injuries sustained in an accident returning from a work trip is considered work-related.

Therefore, this ALJ's decision was upheld by the state court and the claimant received workers' compensation benefits.

Continue reading "The Court in Gaines Gentry v. Mandujano Clarifies What is Considered to be Work Related in North Carolina Workers' Compensation" »

Hale v. Office of Ins. Comm'r Discusses Psychiatric Injuries in North Carolina Workers' Compensation Claims

April 18, 2012, by

Work related injuries can affect you not only physically but mentally and emotionally. If you have been involved in a work related injury in North Carolina, get the advice of an experienced North Carolina injury attorney to help you get the benefits you deserve. Attorney Henry Teich has been a North Carolina Board Certified Specialist in Workers' Compensation Law for more than 10 years.

Hale v. Office of Ins. Comm'r is a case that shows how challenging some Worker's Compensation ("WC") claims for psychiatric injuries can be.

Hale ("Plaintiff" or "Claimant") was the employee of the Office of Insurance Commissioner in West Virginia ("Defendant"). While working for this office, Hale sustained injuries to his back. As a result of these injuries, Hale received a permanent partial disability award.

Claimant later sought a psychiatric evaluation. The doctor evaluating claimant identified that the claimant was suffering from panic disorder and major depressive episode created by the work accident where he injured his back. These reports were submitted by this doctor in the attempt to add depression as a compensable injury to claimant's WC claim.

The Worker's Compensation Board of Review ("BOR") and the WC Office of the Judge ("OOJ") rejected claimant's proposed amendment. The main contention was that the claimant was required to seek approval from his WC claims administrator before he sought the psychiatric evaluation. Claimant then appealed this decision to the state supreme court.

The question presented to the court was whether a claimant in a workers' compensation claim must get prior authorization from the WC administrator before claimant gets a psychiatric consultation. The court begins with a summation of the basic WC rules which are:
- In order to for an injury to be considered compensable for WC purposes there must be a personal injury, this injury must have been sustained during the course of employment and the injury must be a result of employment.
- In a WC case, the claimant has the burden of proving the claim.
- In West Virginia, a psychiatric disability is compensable for purposes of WC when the injury arose out of comprehensible physical injury.

The court was charged with interpreting two state WC statutes that conflicted with each other. In order to establish whether the rules and procedures created by an administrative agency will be upheld, the rule or procedure must be reasonable and cannot "enlarge, amend or repeal substantive rights created by statute." See State ex rel. Callaghan v. W.Wa. Civil Serv. Comm'n, 273 S.E.2d 72 (1980).

Within one of the statutes, the claims administrator would be charged with making a decision regarding psychiatric treatment without the expert medical or psychiatric opinions. This West Virgina court found that this restriction on claimant's psychiatric treatment was not reasonable and it was inconsistent with the intent of the statute drafters. WC was created to provide compensation to workers who are injured in the course of their employment. Therefore, the state Supreme Court held that this type of requirement would be an invalid exercise of administrative regulation.

The court here upheld the other statute and cited previous case law that established a threefold process to determine whether a claimant can add a psychiatric disorder as a compensable injury in a WC claim. In order for a claimant to add a psychiatric disorder to the claim, claimant's treating physician must refer the claimant to a psychiatrist for a consultation. Upon completing this initial consultation the psychiatrist is required to provide a detailed report consistent with WC law. Lastly, the claim administrator is responsible for utilizing the psychiatrist report and determining whether the psychiatric condition should be classified as a compensable injury in the claim.

Being silent about your mental health is not necessary in WC claims. This case shows how important it is to understand your rights.

Continue reading "Hale v. Office of Ins. Comm'r Discusses Psychiatric Injuries in North Carolina Workers' Compensation Claims" »

Preliminary Records of 2011 Work Accidents in North Carolina Released

January 24, 2012, by

The preliminary numbers have been released regarding the number of work-related accidents in North Carolina in 2011, according to the North Carolina Department of Labor. Through the preliminary results, more than 50 people died on the job in the state during the year, which illustrates an increase from the 2010 numbers.
Through the preliminary results, the Department's Occupational Safety and Health Division has identified four work hazards, that they refer to as "the big four," that caused roughly 80 percent of all of the work-related fatalities throughout the year.

Our Rutherfordton workers compensation attorneys understand that the number one cause of work-related deaths was struck-by accidents. These types of accidents accounted for nearly 20 of the 53 recorded work fatalities during 2011. In addition to these fatal incidents, about 17 people died from fall-related accidents, another five were killed after being crushed by objects and one worker was electrocuted. There were 12 other fatal work accidents, including four that were head-related accidents.

"The extreme heat contributed to four workplace deaths last year after not having any since2006," Labor Commissioner Cherie Berry said. "The department will continue its heat stress initiative that we kicked off last year. We are urging employers and employees to recommit themselves to safety and health in 2012."

Although more than 50 people died in 2011 from on-the-job accidents, the state's illness and injury rate is the lowest it has ever been for the private industry. This statistic provides a peek into the safety measures being taken on job sites statewide. The illness and injury rate has declined from more than 5 per 100 full-time employees in 2000 to just over 3 per 100 full-time employees in 2010.

According to Allen McNeely, director of the Occupational Safety and Health Division, the illness and injury rate is falling steadily because the state is fortunate enough to have employers who value the safety and health of employees.

McNeely plans on continuing on in the training and education process and to reach out to employers who need help with these kinds of safety programs. All employers should be provided with the resources to keep employees safe and happy on the job.

The construction industry ranked in at number one for the most fatal industry. The construction industry had 16 fatal work accidents in 2011. While this is a decrease from the 17 experienced in 2010, it's still far too many employee fatalities.

More Industry Fatalities Numbers:

-The fishing, forestry and agriculture industry wasn't as fortunate. This industry went from four fatalities in 2010 to about 10 in 2010.

-The public utility facilities and transportation industry increased from five fatalities in 2010 to six in 2011.

-The government industry saw an increase in the number of fatal work accidents from zero in 2010 to five in 2011.

-The wholesale trade industry saw five fatalities. Zero change from 2010.

-The retail trade industry saw four fatalities. Zero change from 2010.

-The service industry experienced four work-related fatalities. This number illustrates a decrease from the six experienced in 2010.

-Manufacturing went from six fatalities in 2010 to only three in 2011.

-While there were three fatalities in the insurance, real estate and finance industry in 2010, there were none in 2011.

According to Commissioner Berry, the real tragedy is that all of these fatal work-accidents could have been prevented if adequate health and safety training practices were in place. Berry reminds employers that these programs are available to them free of charge through the Department of Labor.

There were no work-related deaths in 67 of the 100 North Carolina counties.

Most Dangerous Counties:

-Wake County: 6 fatalities.

-Mecklenburg County: 5 fatalities.

-Durham: 3 fatalities.

-Forsyth 3 fatalities.

-Buncombe: 2 fatalities.

-Cabarrus: 2 fatalities.

-Franklin: 2 fatalities.

-Henderson: 2 fatalities.

-Lee: 2 fatalities.

-Scotland: 2 fatalities.

-Union: 2 fatalities.

Men accounted for 52 out of the 53 work-related fatalities in North Carolina in 2011.

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Fewer State OSHA Inspections Leave Employees at High Risk of Work Injuries in North Carolina

October 14, 2011, by

State officials conducted fewer work-safety inspections last year than at any time in the last 17 years. The Charlotte Observer reports the lessons of the 1991 chicken plant fire appear to be fading. The federal government's takeover of the state Occupational Safety and Health Administration all but forgotten. The deadly North Carolina work accident fading into history.

And in the 20 years since 25 people were killed in the Hamlet fire (they were locked in to prevent the theft of chicken nuggets and died struggling with the doors), the state agency's staff has not kept pace with the growth of the state's workforce.1300912_2010_live_burns_at_the_brayton_fire_fiels.jpg

Our Charlotte workers' compensation lawyers understand far too many employers get away with violating work safety rules. In the wake of the recent stories in the Charlotte Observer, the state makes excuses for the lack of accountability instead of acknowledging the shortcomings.

In fact, North Carolina Labor Commissioner Cherie Berry would only address reporters' questions if they were submitted in writing.

"[T]here is no disputing [North Carolina] has made significant progress," she wrote. ". . . I can tell you workplaces are safer now."

Twenty-seven states, including North and South Carolina, run their own OSHA programs rather than being subjected to federal jurisdiction. The law requires these plans to be "at least as effective as federal OSHA." In a 2009 review, federal regulators made a dozen recommendations for improvements and found a host of problems, including:

-Incomplete case histories due to the purging of material.

-Insufficient responses to the concerns of complainants.

-Insufficient information given to families of fatality victims.

-Outdated case files.

-Misclassified violations or long delays in the issuing of violations.

-Penalties that are too low for serious violations.

-Improper handling of discrimination complaints.

The Sept. 3, 1991 fire occurred in the windowless brick building 70 miles east of Charlotte. A fire erupted after a ruptured hydraulic line spewed flammable fluid onto a deep fryer at the Imperial Food Products plant. The plant had never been inspected, despite being in operation for more than a decade.

In the wake of the tragedy, the state doubled its number of inspectors to 115. While the state still has among the largest workforce of inspectors in the nation, the numbers have been flat since 1993. Meanwhile, the state's workforce has increase by 19 percent. North Carolina OSHA conducted 4,500 inspections last year -- the fewest since 2001.

Newly released statistics from the U.S. Department of Labor show 187 workers died in fires or explosions last year.

In all, 4,547 U.S. workers died last year -- virtually unchanged from the 4,551 who died in 2009. Transportation accidents accounted for more than one-third of the deaths (1,766), followed by assault, contact with objects or equipment, and fatal falls.

Fatal job accidents in North Carolina increased last year. A total of 134 employees lost their lives, compared to 129 in 2009. In South Carolina, 65 lost their lives, compared to the 73 who died in 2009.

Continue reading "Fewer State OSHA Inspections Leave Employees at High Risk of Work Injuries in North Carolina" »