A claimant injures his back lifting an item. You run an ISO Report and see a prior back claim. You talk with the insured and confirm that claimant denied prior back issues upon being hired. Do you have a defense to deny the claim. Maybe. But you have some heavy lifting of your own to do first. I'll discuss further in this episode a little-known and little-used defense that may save you a lot of money.
Aug 23, 2023
27 min
Claimant has a positive drug screen and is fired for violating the employer's drug-free work zone. Automatic denial, right? Maybe, but will it ultimately hold up in court? Maybe not. Intoxication is an affirmative defense in North Carolina meaning that you as the employer and carrier need to prove it. What exactly do you need to do to prove intoxication? Take a shot of this episode and find out.
Aug 8, 2023
28 min
Generally, when a worker is not covered by workers' compensation when she is going to or from work. However, like most things in life, there are exceptions. I will discuss those four exceptions to the Coming and Going Rule and what to look for in your cases when an employee gets injured but has yet to "arrive" or "clock in or out" at work.
Jul 18, 2023
34 min
The Supremes came out with a published decision - a rare treat in North Carolina workers' compensation cases. Although this was more of a procedural rebuke of the Court of Appeals, there is a decent discussion of burdens of proof when it comes to a notice defense under N.C. Gen. Stat. 97-22. Think you are safe when an employee notifies you of an accident and says she's fine, then opts to treat on her own without telling you to the point of needing fusion surgery over a year later?...
Jun 27, 2023
31 min
Today I do a deep dive into an unpublished opinion on the Parsons Presumption. I discuss the presumption, but more importantly I point out how attorneys and doctors engage in depositions, the testimony one needs to rebut the presumption, handling pre-existing injuries and how the Commission and Court of Appeals deals with testimony when they render their opinions. This episode is a must-listen in terms of "inside baseball" as to the litigation process playing out.
Jun 14, 2023
38 min
The time, place and circumstances of an injury matter. It can be from an accident that arose out of the employment, but the employee still has to prove that it occurred within the course and scope of the employment for the injury to be compensable. We will discuss how a claimant can meet that burden.
Jun 6, 2023
25 min
Today, the General Assembly approved of Governor Cooper's appointment of Chairman Baddour to another six-year term as Chair of the Full Commission. This is a good opportunity to discuss the hearing process. Who makes up the Commission and the 20 Deputy Commissioners spread across the state? What does it take for a claim to get to be heard by a Deputy Commissioner? The Full Commission? And how long does it take for an Opinion and Award to be rendered on a case?&nb...
May 25, 2023
35 min
A claimant is walking down the hallway and falls. It matters as to whether she tripped over an object, her leg just gave way, she rolled her ankle or she has no idea how she fell. Some of these are compensable claims. Some are not. I will discuss the concept of an idiopathic condition and how it plays a role in a compensability analysis.
May 18, 2023
29 min
A special treat of three published Court of Appeals cases in one week. Baker discusses the requirement for a Pleasant case to survive summary judgment in a civil proceeding. Brewer discusses the burden when it comes to the Parsons presumption. And Marlow allowed a civil case to survive summary judgment with a finding that the accident did not arise out of the employment - despite the employer already accepting the accident as compensable on a Form 60. Listen in to lear...
May 8, 2023
51 min
12 hours after the last episode published, the Court of Appeals came out with its revised decision in Sturdivant. The verdict? The 500-week cap on indemnity benefits is gone. I will discuss this decision and take a deep dive into what is actually left of the alleged pro-employer amendments that were made to the Act in 2011. I will also discuss what a veto-proof General Assembly can do to immediately address the problems that have arisen since those amendments were enac...
Apr 20, 2023
49 min