In the past two years, there have been many interesting and impactful appellate decisions in North Carolina Workers’ Compensation law. Going into 2023, we wanted to flag the following:

SUITABLE EMPLOYMENT

In Griffin v. Absolute Fire Control, 376 N.C. 727, 2021-NSC-9, the Supreme Court of North Carolina affirmed, per curiam, the Court of Appeals’ decision that Plaintiff’s post-accident employment with Absolute Fire Control was not suitable.  For background, the employee was unable to return to his pre-injury position after his compensable accident due to the permanent restrictions he received after reaching MMI. Yet, immediately after his injury, Defendant offered him a different job in their fabrication shop, but testified at trial that, if they hadn’t already known him, they wouldn’t have hired him to do that replacement job.  Given this, the Court of Appeals reversed the Industrial Commission, finding the Commission failed to address whether the job was available with employers other than with Defendant. By looking inward, the Commission did not assess whether the position was available in the competitive marketplace. The Court found, to be suitable, the position must be able to found elsewhere as it shows the injured employee remained employable.

STATUTE OF LIMITATIONS FOR MEDICAL COMPENSATION

In the case of Dunbar v. Acme Southern, 274 N.C. App. 251, 852 S.E.2d 394 (2020), the Court of Appeals affirmed the Full Commission’s holding that the employee’s claim for additional medical compensation was denied. For background, the employee sustained a compensable injury in 1998 and entered into a settlement agreement that resolved all indemnity issues but allowed the employee’s medical compensation to continue. The employee continued to receive medical treatment and the carrier continued to pay for the treatment. However, in 2013, the medical providers began to bill Medicare instead of the carrier. The carrier and the employee did not know about the change in billing and over two years elapsed with the carrier not paying further medical compensation since 2013. The employee was then referred to a medical provider for pain management. The carrier was asked to authorize, and the carrier denied the treatment. The Court of Appeals affirmed the Industrial Commission’s holding, finding the plain language of N.C.G.S. § 97-25.1 bars compensation beyond the two-year period following the last payment of either medical or indemnity compensation, and contains no language suggesting that any “notice” is a condition to the accrual of the limitation period.

TERMINATION FROM EMPLOYMENT AND INDEMNITY PAYMENTS

In the case of Richards v. Harris Teeter,877 S.E.2d 881, 2022-NCCOA-595, the Court of Appeals affirmed the Full Commission decision that benefits were not barred when the employee was terminated for “violation of established safety procedures” which led to the compensable accident. The Court of Appeals distinguished this case from Seagraves. The Seagraves employee was barred from indemnity benefits when he was terminated from the light-duty, rehabilitative employment that he was given after contracting a compensable occupational disease. In contrast, the Richards plaintiff was terminated from his regular job for his role in the very accident that caused his admittedly compensable injury. Accordingly, the Court affirmed the Full Commission, finding the Seagraves test was not applicable as it would place a for-cause bar to recovery of workers’ compensation benefits.

MEDICAL CAUSATION

In Kluttz-Ellison v. Noah’s Playloft Preschool, 283 N.C. App. 198, 2022-NCCOA-290, the Court of Appeals affirmed the Full Commission’s determination that bariatric surgery was a medically necessary procedure following the employee’s compensable workplace accident. As a result of the workplace accident, the employee needed knee replacement surgery. However, she could not undergo surgery until she lost a significant amount of weight. Medical testimony stated the employee could not lose weight fast enough due to her physical limitations. Accordingly, the Court of Appeals found the employee proved there was a “direct line connecting the dots between the Plaintiff’s original compensable injury and the Commission’s award for bariatric surgery.” Accordingly, the Court of Appeals affirmed the Full Commission’s decision and ordered the insurer to cover the bariatric surgery.